ISSUE 9.11
UK Regulatory reform The Big Bang for UK firms?
Coal play
Green light for Queensland’s newest port
Litigation and disputes Regulators play hardball
John Arthur, Westpac Group Another day at the bank Market-leading analysis Comprehensive deals coverage debt & Equity market intelligence
www.legalbusinessonline.com
Real Estate Lawyer - Darwin Senior Associate or Special Counsel Level Key role Lifestyle opportunity This role at Clayton Utz’s Darwin office represents an opportunity to advance your career within a modern tropical city, offering an easygoing lifestyle on the doorstep of Asia. Working in centrally located CBD offices, the successful candidate will benefit from a defined career path and short commutes together with great weather, beautiful sunsets, vibrant markets, a multicultural community and laid-back lifestyle. Clayton Utz’s Darwin office has long been advising local and international corporates on some of the largest and most cutting edge deals and disputes seen in recent years. As part of a fully integrated national firm, the Darwin office is characterised by energetic and talented lawyers that are the hallmark of Clayton Utz. They compete for work against other top tier firms around
the country, yet in Darwin enjoy a unique tropical lifestyle that is unrivalled in Australia. An opportunity is available for a senior associate to special counsel level real estate and commercial lawyer. The role would suit a lawyer interested in stepping into a readymade practice and taking a leading role. You should have a broad property background that may involve sales & acquisitions, leasing, large scale developments, finance, joint ventures and other real estate matters. The work is complex, it is involved and it is interesting. Call Burgess Paluch today for a confidential chat on the benefits of joining this busy and friendly office. Interstate and overseas candidates are welcome to apply. Excellent relocation assistance and visa sponsorship is available if needed. Contact Paul Garth on +61 3 8676 0342 or email your details to paulg@bplr.com.au (Direct or third party applications will be forwarded to Burgess Paluch.)
Contact Paul Garth on +61 3 8676 0342 or email your CV to paulg@bplr.com.au
Significant Partner Roles Perth M&A and Energy/Resources
Strong international law firm seeks to bolster its already globally recognised and locally respected Mergers & Acquisitions and Resources practices. The firm is enjoying exciting times and will add 2 partners to advise clients on a broad range of corporate law matters, including compliance and corporate governance, conduct of meetings, shareholders rights and advising clients on other aspects of the Corporations Act and ASX Listing Rules. The firm is known for its comprehensive and innovative approach to the M & A and energy and mining industries. 2 key roles.
Melbourne Commercial Litigation
Our client is an expanding national firm with key corporate clients and an established Melbourne office. With a platform of brand name clients and full support services, the firm is well placed to continue its local growth and leverage off interstate work. The firm has a relaxed, friendly culture and has attracted partners from a range of larger, well regarded firms. It offers the chance to take on leadership roles for the right partners and rewards its partners by encouraging broader contributions than simply analysing billable hours.
Adelaide Property Partner
One of Adelaide’s leading local firms, and part of the Adelaide top-tier, this capable corporate firm is actively seeking a property partner to take on a significant role within the practice. Working with other commercial partners and enjoying a strong base of referred files, you will actively represent the firm in a range of property transactions and contribute to its growth plans locally. An open, relaxed and collegiate firm, this represents a rare opportunity for a quality local or interstate lawyer with a strong base of experience. Great local package and future equity path.
BPL2300
www.bplr.com.au Paul Burgess 0414 687 629 Doron Paluch 0438 004 445 Paul Garth 0434 113 355 paulg@bplr.com.au
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1
ISSUE 9.11
UK Regulatory reform The Big Bang for UK firms?
Coal play
Green light for Queensland’s newest port
Litigation and disputes Regulators play hardball
All Blacks provide timely lesson on mediocrity
O
n Sunday October 23, the New Zealand national rugby union team squeaked out a fortunate win against a surprisingly valiant France to claim the 2011 Rugby World Cup. The winning margin was one point. No one would deny that this was a much needed boost for a nation with such well documented traumas as those relating to Christchurch and wider Canterbury. Even without this background, this is a nation that has a borderline pathological obsession with rugby. No doubt some fans are still celebrating even as this edition of ALB goes to print. New Zealand has now won the Rugby World Cup on two occasions – 1987 and 2011. This somewhat modest record may come as something of a surprise given the All Black aura of ferocious omnipotence. One of the most renowned brands in the world of sport has not necessarily matched its reputation with results on the field. Which brings us back to the world of law firms and the need to match reputation with results “on the field.” If there is a moral to the 2011 Rugby World Cup, it is that branding can only take you so far. As many a Kiwi has privately conceded, anything less than an All Black World Cup would have been an embarrassment given the nature of the build up to the event. So too in the world of business: the more a firm seeks to laud its own pedigree, the greater the pressure on that firm to produce results. This does not mean making more revenue than everyone else or having a higher profit margin – but it does mean living up to the particular value proposition promoted by the firm. To do anything less is to wear the proverbial egg on one’s face – a fate which was averted by one point at Eden Park last month.
2
John arthur, Westpac group Another day at the bank Market-leading analysis CoMprehensive deals Coverage debt & equity Market intelligenCe
www.legalbusinessonline.com
IN THE FIRST PERSON “To be in banking from 2008 to 2011 is to have seen generation’s worth of occurrences in a handful of years: the impact of the global financial crisis, the rise of reregulation and in our case bedding down the biggest merger in Australian financial services history.” John Arthur, Westpac Group (p44)
“It’s too easy to caricature lawyers, just as we do with engineers – but when you look at why people stick with law, they tend to like the pure logic of it – they enjoy the management of very complex transactional activities.” Nigel Ward, Australian Business Lawyers & Advisors (p22)
“While this greater flexibility means that work doesn’t necessarily have to be done at work, it also means that you can never escape the reach of work. The telecommunications choice of most lawyers is not called the ‘slaveberry’ in our house without reason.” Kylie Groves, Squire Sanders (p62)
Asian Legal Business ISSUE 10.6
News | deals contents >> >>
contents
ALB issue 9.11 22
58
52
COVER STORY 44 In-house profile: John Arthur, Westpac Group How to become General Counsel at Australia’s second largest banking group
FEATURES 14 Coal collaboration: Queensland’s WICET Coal producers unite to seal the deal on Queensland’s newest port facility 26 Litigation & dispute resolution As ASIC and ACCC prepare to take a tough regulatory stance, corporates are learning to take a more conciliatory tone 33 Litigation PR Do litigation lawyers need a crash course in public relations? 36 Building & construction The latest developments affecting construction practices and clients 48 Career progression Top tips for advancing your legal career 52 UK Report Regulatory reform has hit the UK legal profession – and the world will never be the same again, according to commentators
58 Technology Should lawyers embrace tablet technology?
• Harmers joins global alliance of employment firms
PROFILES
• NSW wins ballot to host national legal regulators
22 Managing partner profile: Nigel Ward, Australian Business Lawyers & Advisors His law firm may be a wholly owned subsidiary, but Nigel Ward is confident that he’s his own man
REGULARS 8 DEALS 16 Appointments 18 NEWS
COLUMNS 18 U.S Report 19 In-house Q&A 20 UK Report
COMMENTARY 11 New Zealand Buddle Findlay
• Outbound M&A work hits pre GFC levels • Corporate Australia addicted to banks, says A&O report • Atanaskovic Hartnell unveils London office • Mallesons signs LPO agreement with Integreon
Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Australasian Legal Business can accept no responsibility for loss.
4
Australasian legal business ISSUE 9.11
er ti se o f Leg a l E xp rs a ye ty en Ove r tw
NEWS >>
M&A >>
Outbound M&A work hits pre GFC levels T
he latest Thomson Reuters M&A statistics show a dramatic increase in the value of outbound deals by
Australian corporates. Outbound deals jumped from roughly 10 percent of all M&A work in the second quarter
►► Australian Target or Acquiror (AE10) Year-To-Date Rank
Legal Advisor
Ranking Value inc. Net Debt of Target ($Mil)
Mkt. Share
Number of Deals
1
Allens Arthur Robinson
43,080.29
32.0
55
2
Blake Dawson
33,472.13
24.9
60
3
Mallesons Stephen Jaques
33,469.85
24.9
63
4
Clayton Utz
30,848.64
22.9
53
5
Freehills
30,669.83
22.8
64
6
Latham & Watkins
28,391.04
21.1
3
7
Allen & Overy
26,765.13
19.9
29
8
Corrs Chambers Westgarth
23,839.35
17.7
24
9
Sullivan & Cromwell
23,566.26
17.5
4
10
Morgan Lewis & Bockius
20,329.43
15.1
3
11
Simpson Thacher & Bartlett
18,138.60
13.5
5
12
Clifford Chance
17,436.70
13.0
13
13
Cravath, Swaine & Moore
14,039.72
10.4
4
14
Cleary Gottlieb Steen & Hamilton
13,037.72
9.7
2
15
Hogan Lovells
12,820.44
9.5
3
16
Minter Ellison
10,531.40
7.8
58
17
Johnson Winter & Slattery
10,311.48
7.7
10
18
Gilbert + Tobin
10,050.37
7.5
18
19
Baker & McKenzie
9,524.77
7.1
33
20
Norton Rose
9,488.48
7.0
21
21
Osler Hoskin & Harcourt LLP
7,480.39
5.6
2
22
Wachtell Lipton Rosen & Katz
4,750.00
3.5
1
23
Dechert
3,956.10
2.9
1
24
Skadden
3,466.53
2.6
5
25
Arnold Bloch Leibler
Subtotal with Legal Advisor
3,146.29
2.3
5
121,290.40
90.1
416
Subtotal without Legal Advisor
13,329.10
9.9
916
Industry Total
134,619.50
100.0
1,332
Source: Thomson Financial Date: October 31, 2011
6
of the 2011 calendar year to more than 50 percent in the third quarter. Comparable outbound ratios have not been seen since late 2007. “This shift towards outbound activity is attributable to the increase in Australian companies buying and selling offshore assets as the local market takes to the global stage due to the strong Australian dollar,” said Freehills partner Rebecca MaslenStannage. However, this view is qualified by Allens Arthur Robinson M&A partner Richard Kriedemann. While he admits the strong Australian dollar is one factor, Kriedemann says another reason for the buoyant outbound market is that Australian corporates are more positive about investing in jurisdictions where they can see growth opportunities, such as southern Africa. “I think there is still a relatively healthy appetite for risk,” he said. “My sense is that there is a net higher level of optimism amongst Australian corporates than a lot of their overseas counterparts.” Kriedemann said he expected the next quarter to be quieter than the most recent quarter as a number of political and regulatory issues in Australia come to the fore. “That uncertainty is having a drag effect. Once you have an idea of what the lie of the land is you can make more definite positions,” he said. However, he is nevertheless “cautiously optimistic” about ongoing M&A work in the coming year. “There is still an encouraging level of global confidence in the Australian market. We have low interest rates, low unemployment, strong commodity prices, I would think those factors make us an attractive investment destination,” he added. ALB Australasian Legal Business ISSUE 9.11
BANKING & FINANCE >>
Corporate Australia addicted to banks, says A&O report A
new Allen & Overy report has found that almost half of the Australian business leaders surveyed expect their need for credit to increase during the next two to three years and that banks remain the favoured avenue for funding. The research, based on responses from 1,000 business leaders across large international companies in 19 countries, shows that 42 percent of Australian business leaders expect need for credit to rise in the near future. According to A&O partners Tony Sparks and Chris Robertson this is as a result of corporates looking to act on expansion plans in the near future, securing funding ahead of time and refinancing issues. “There is a well known wall of refinancing coming up in the next 12 to 24 months,” said Robertson.” A lot of companies need to plan for that refinancing, and when you add to that any plans for expansion, particularly if you are in an industry growing, then the overall net requirement for funding goes up.” The survey also found that Australian businesses were more inclined to use debt from banks than alternative funding sources. “We have a market here which has been dominated by the bank lending market,” said Sparks. “For a variety of reasons we have not developed alternative funding markets which have developed in offshore jurisdictions.” Responses suggest the trend was unlikely to change much in coming years, with more than half
(53 percent) of Australian businesses indicating they were likely to increase their reliance on bank loans compared to only 42 percent in the case of global businesses over the next five years. However, given that only 17 percent of Australian respondents said they expected to find it harder to access funding in the future, Sparks says this may suggest that companies are comfortable enough with their current banking relationships to see them negotiate extensions of their existing funding arrangements. Although banks are still the favoured source for debt, A&O has seen a slight change in the market with regards to alternative funding solutions. “One thing we have noticed is that corporates are increasingly looking at diversifying funding sources,” said Sparks. Alternative sources of funding favoured by Australian corporates include Asianbased lenders in general syndications, institutional funding sources, offshore bond markets and other alternatives such as an Australian corporate bond market, which according to Robertson is also on the agenda again. “Companies able to keep a stable maturity profile using a mix of funding sources should do well while those exposed to one particular source of funding could struggle,” said Robertson. The report is the second in the 50 Degrees East series looking at how Asia’s rapid growth and development is expected to influence business decision making in the future. ALB
NEWS | deals >>
deals in brief
By Kalianna Dean
Firm: Freehills Lead Lawyer: Jay Leary Client: Queensland Treasury Firm: Mallesons Stephen Jaques Lead Lawyer: Robert Jackson Client: Gladstone Ports Corporation (GPC) • Queensland’s first user-funded coal terminal. WICET is owned by a consortium of coal exporters, being advised by ANZ corporate advisory • Allens Arthur Robinson has advised CBA on various transactions in the past. The most recent was advising CBA Equities in relation to the Bega Cheese IPO • Freehills has acted for the Queensland Treasury and the Queensland Government in other transactions, including the South East Queensland Schools PPP project
| M&A | ►► Financing for Sealed Air Corporation acquisition of Diversey Holdings, Inc – A$3 billion
| Project finance | ►► Wheatstone LNG project financing – A$29 billion Firm: Freehills Lead Lawyers: Justin Little, David Hugo Client: Apache Energy Firm: Jackson McDonald Client: Chevron Firm: Mallesons Stephen Jaques Client: Chevron Firm: Minter Ellison Lead Lawyer: Duncan Maclean Client: Kuwait Foreign Petroleum Exploration Company (Kufpec) • This A$29 billion project is operated by Chevron and participants include Apache Energy, Kufpec and Royal Dutch Shell. The final investment decision to proceed was made on Monday, September 26 • Freehills partner Little has also advised Apache Energy on the restructure of its offshore petroleum interests, including
8
the acquisition of an additional interest in the Novara and Coniston oilfields • Mallesons Stephen Jaques has also advised Chevron on a number of aspects of the Gorgon Gas Project including Government approvals, project and tenure documentation and sales of equity interests • Royal Dutch Shell was advised by in-house legal counsel
| Project finance | ►► Wiggins Island Coal Export Terminal project financing
Firm: Clifford Chance Lead Lawyer: Scott Bache Client: Sealed Air Corporation Firm: Mallesons Stephen Jaques Lead Lawyer: Richard Hayes Client: Citibank-led syndicate of banks acting as financiers Firm: Shearman & Sterling LLP Client: U.S. counsel to the banks Firm: Simpson Thacher & Bartlett LLP Client: U.S. counsel to Sealed Air Corporation
– A$4 billion Firm: Allens Arthur Robinson Lead Lawyers: Phillip Cornwell, Rob Watt, Nicholas Adkins Client: Financiers Firm: Blake Dawson Lead Lawyer: David Mason Client: Wiggins Island Coal Export Terminal (WICET) Firm: Clifford Chance Lead Lawyer: Jason Mendens Client: Sumisho Coal Australia
• Syndicate of banks led by Citibank provided new facilities to enable acquisition of Diversey Holdings by Sealed Air Corporation
| m&a/resources | ►► Hanlong improved bid for Sundance Resources – A$1.65 billion Firm: Clayton Utz Lead Lawyer: Mark Paganin Client: Sundance Resources Firm: Mallesons Stephen Jaques Lead Lawyer: David Friedlander Client: Hanlong Mining Investments • Hanlong Mining Investments (Hanlong) has submitted an improved offer for Sundance Resources Limited (Sundance); an all cash proposal to acquire 100 percent of Sundance, at an increased offer price of A$0.57 per share • Clayton Utz also advised Sundance on the original offer made by Hanlong in July of A$0.50 per share, attributing A$1.4 billion value to Sundance • Mallesons partner Friedlander advised Hanlong when it submitted the original offer
| AVIATION | ►► MAp Airports/Ontario Teachers’ Pension Plan asset swap – A$1.6 billion Firm: Allens Arthur Robinson Lead Lawyers: Stuart McCulloch, Susan Burns, Julian Donnan Client: MAp Airports Limited (MAp – formerly Macquarie Airports) Firm: Freshfields Lead Lawyer: Laurie McFadden Client: Ontario Teachers’ Pension Plan (OTPP)
• Financing included two senior secured term loan facilities and a new revolving credit facility
• Under this deal MAp exchanged interest in its Brussels and Copenhagen airports for OTPP's interests in Sydney Airport, plus a balancing payment of approximately A$790 million. MAp now holds an 85 percent interest in Sydney Airport
• Clifford Chance fielded a team of lawyers led by its New York office, including teams from Amsterdam, Brussels, Frankfurt, London, Luxembourg, Madrid, Milan, Moscow, Paris, Rome and Tokyo
• This deal also included a A$1.5 billion restructure for Allens Arthur Robinson client MAp as it deemed its current structure – an offshore company and two overseas boards – inappropriate Australasian Legal Business ISSUE 9.11
NEWS | deals >>
• Allens Arthur Robinson will also be advising MAp on the associated restructure and has advised on acquisition of its stake in the Sydney, Rome, Copenhagen, Brussels, Birmingham and Bristol airports
►► Your month at a glance Firm
Jurisdiction
Deal name
Value ($Am)
Practice
Allen & Overy
Australia
Leighton Holdings Indonesia operations financing
600
Debt
Australia
iSelect Ltd acquisition of InfoChoice Limited
68.5
M&A
Australia
Wiggins Island Coal Export Terminal project financing
4,000
Project Finance
Australia
MAp Airports/Ontario Teachers’ Pension Plan asset swap
1,600
Aviation
Australia
Leighton sale of HWE entities to BHP Billiton
705
Resources
Australia
Northern Territory Correctional Precinct PPP
495
Project finance
Australia
OneSteel acquisition of WPG iron-ore assets
350
M&A/Resources
Allens Arthur Robinson
| Mining & resources | ►► Exxaro Resources sale of mineral sands operations to Tronox Inc – A$1.5 billion Firm: Blake Dawson Lead Lawyers: Marie McDonald, Bruce Dyer Client: Tronox
Australia
iSelect Ltd acquisition of InfoChoice Limited
68.5
M&A
Bell Gully
Australia/ New Zealand
Blackstone Group acquisition of Antares Restaurant Group from Anchorage
Undisclosed
M&A
Blake Dawson
Australia
Wiggins Island Coal Export Terminal project financing
4,000
Project Finance
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Australia
Olympic Dam Corporation Variation Deed
1,700
Resources
Australia
Energy Resources Australia (ERA) equity raising
500
Debt
Australia
Investec financing for Gold One
185
Debt
Australia
Abacus/AM Alpha GmbH Acquisition of 309 George St, Sydney
70
Property
Australia
RWS acquisition of Inovia Holdings
31.2
M&A
Australia
Seven West Media credit facility
2,075
Debt
Australia
Hanlong bid for Sundance Resources
1,650
M&A/Resources
Australia
Minmetals Resources Limited bid for Anvil Mining Limited
1,300
M&A/Resources
Australia
Super Retail Group acquisition of Rebel Group
610
M&A
Australia
Woolworths Notes offer
500
Debt
Australia
Eastern Goldfields PPP prison project
232
PPP
Australia
Coffey International capital raising
40
Equity
Australia
Coates Hire Operations acquisition of Tru Blu Australia Pty Ltd
Undisclosed
M&A
Australia
Wiggins Island Coal Export Terminal project financing
4,000
Project Finance
Australia
Financing for Sealed Air Corporation acquisition of Diversey Holdings, Inc
3,000
M&A
Firm: Freehills Lead Lawyer: Daniel Blue Client: Exxaro Resources Limited Firm: Kirkland & Ellis LLP Lead Lawyer: Daniel Wolf Client: Tronox (U.S. counsel)
Clayton Utz
Firm: Latham & Watkins Client: Goldman Sachs (U.S. counsel) Firm: Minter Ellison Lead Lawyers: John Mosley, Sam MacGibbon, Ricky Casali, Andrew Thompson Client: Goldman Sachs Firm: Norton Rose Lead Lawyer: Kevin Cron Client: Exxaro (South African counsel) • This deal saw Exxaro Resources sell its Australian mineral sands operations to US-based Tronox Inc, which produces and markets titanium dioxide pigment
Clifford Chance
Australia
Diamantina Power Station development
500
Energy & Resources
Davies Ward Phillips & Vineberg
Australia
Minmetals Resources Limited takeover offer for Anvil Mining Limited
1,300
M&A/Resources
DibbsBarker
Australia
iSelect acquisition of InfoChoice Limited (advice InfoChoice)
68.5
M&A
DLA Piper
Australia
Calix Limited capital raising
Up to 54.6
Capital Markets/ Resources
Freehills
Australia
Wheatstone LNG project financing
29,000
Project Finance
Australia
Wiggins Island Coal Export Terminal project financing
4,000
Project Finance
Australia
Seven West Media credit facility
2,075
Debt
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Australia
Minmetals Resources Limited takeover offer for Anvil Mining Limited
1,300
M&A/Resources
Australia
Super Retail Group acquisition of Rebel Group
610
M&A
Australia
Diamantina Power Station development
500
Energy & Resources
Australia
Goodman Fielder capital raising
259
Equity
Australia
Lend Lease wholesale investment vehicle
153
Funds management
Australia
MAp Airports/Ontario Teachers’ Pension Plan asset swap
1,600
Aviation
• The mineral sands operations include the Namakwa Sands and KZN Sands operations in South Africa, as well as its 50 percent interest in the Tiwest Joint Venture in Australia
| m&a/resources | ►► Minmetals Resources Limited takeover offer for Anvil Mining Limited
Freshfields
– A$1.3 billion Firm: Clayton Utz Lead Lawyer: Matthew Johnson, Gary Berson www.legalbusinessonline.com
Does your firm’s deal information appear in this table? Please contact
alb@thomsonreuters.com
61 2 8587 7484
9
NEWS | deals >>
Client: Anvil Mining Limited
Gilbert + Tobin
Australia
Coffey International underwritten capital raising
40
Equity
Australia
Coates Hire Operations acquisition of Tru Blu Australia Pty Ltd (advice Coates Hire)
Undisclosed
M&A
Australia
Signature Capital Investments Limited strategic alliance/ placement with the Andrew Roberts Group
Undisclosed
Equity
Australia
Evolution Mining fundraising
Undisclosed
Equity
Ginting & Reksodiputro (Allen & Overy Indonesia)
Australia
Leighton Holdings Indonesia operations financing
600
Debt
Hardings Lawyers
Australia/ New Zealand
Gazal Corporation sale of underwear brands to Bendon
Undisclosed
M&A
HopgoodGanim
Australia
Lind Partners investment in Metal Storm Limited
13
Equity
Jackson McDonald
Australia
Wheatstone LNG project financing
29,000
Project Finance
Johnson Winter & Slattery
Australia/ New Zealand
Gazal Corporation sale of underwear brands to Bendon
Undisclosed
M&A
Kirkland & Ellis LLP
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Latham & Watkins
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Lawson Lundell
Australia
Minmetals Resources Limited takeover offer for Anvil Mining Limited
1,300
M&A/Resources
Maddocks
Australia
OneSteel acquisition of WPG iron ore assets
350
M&A/Resources
Mallesons Stephen Jaques
Australia
Wheatstone LNG project financing
29,000
Project Finance
Australia
Financing for Sealed Air Corporation acquisition of Diversey Holdings, Inc
3,000
M&A
Australia
Hanlong improved bid for Sundance Resources
1,650
M&A/Resources
Australia
Leighton sale of HWE entities to BHP Billiton
705
Resources
Australia
Super Retail Group acquisition of Rebel Group
610
M&A
Australia
Woolworths Notes offer
500
Capital Markets
Australia
Diamantina Power Station development
500
Energy & Resources
Australia
Energy Resources Australia (ERA) equity raising
500
Equity
Australia
Northern Territory Correctional Precinct PPP
495
Project finance
Australia
Goodman Fielder capital raising
259
Equity
Australia
Evolution Mining fundraising
Undisclosed
Equity
Australia
Wheatstone LNG project financing
29,000
Project Finance
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Australia
Phosphagenics capital raising and share purchase plan
27
Capital Markets
Minter Ellison Rudd Watts
Australia/ New Zealand
Blackstone Group acquisition of Antares Restaurant Group from Anchorage
Undisclosed
M&A
Norton Rose
Australia
Exxaro Resources sale of mineral sands operations to Tronox Inc
1,500
Mining & Resources
Australia
Abacus/AM Alpha GmbH Acquisition of 309 George St, Sydney
70
Property
Shearman & Sterling
Australia
Financing for Sealed Air Corporation acquisition of Diversey Holdings, Inc
3,000
M&A
Simpson Thacher & Bartlett LLP
Australia
Financing for Sealed Air Corporation acquisition of Diversey Holdings, Inc
3,000
M&A
Australia/ New Zealand
Blackstone Group acquisition of Antares Restaurant Group from Anchorage
Undisclosed
M&A
Sullivan & Cromwell
Australia
Energy Resources Australia (ERA) equity raising
500
Equity
Widyawan & Partners (Allens Arthur Robinson Indonesia)
Australia
Leighton Holdings Indonesia operations financing
600
Debt
Minter Ellison
Does your firm’s deal information appear in this table? Please contact
alb@thomsonreuters.com
61 2 8587 7484
Firm: Davies Ward Phillips & Vineberg Client: Minmetals (Canadian counsel) Firm: Freehills Lead Lawyers: John Tivey, Daniel Brealey Client: Minmetals Resources Limited Firm: Lawson Lundell Lead Lawyer: Gordon Chambers Client: Anvil Mining Limited (Canadian counsel) • Hong Kong-listed Australian based mining company Minmetals Resources has made a takeover bid for Anvil Mining. Minmetals has made a cash offer to acquire all common shares of Anvil at a price of C$8.00 (approximately A$7.88) per share • Freehills also recently acted for Minmetals Resources on the disposal of certain of its downstream assets for $727 million to China Minmetals Non-Ferrous Metals Co
| Resources | ►► Leighton sale of HWE entities to BHP Billiton – A$705 million Firm: Allens Arthur Robinson Lead Lawyers: Andrew Finch, Andrew Pascoe Client: Leighton Contractors Firm: Mallesons Stephen Jaques Lead Lawyer: Paul Lingard, Alan Murray, David Perks, Phil Willox Client: BHP Billiton • Leighton will sell its Pilbara-based mining contracting businesses, representing A$1.1 billion worth of annual revenue and A$1.4 billion worth of work in hand, to BHP • Allens Arthur Robinson also advised Leighton Holdings on its A$757 million equity capital raising, through an entitlement offer, announced in April this year
| M&A | ►► Super Retail Group acquisition of Rebel Group – A$610 million
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Australasian Legal Business ISSUE 9.11
Firm Profile
NZ Commentary
NEW ZEALAND RELEASES 20 YEAR STRATEGY FOR INFRASTRUCTURE INVESTMENT In March 2010 we reported on the first of three instalments of the New Zealand Government’s 20 year national infrastructure plan (Plan). The initial version of the Plan represented the government’s first comprehensive step in delivering on its plan to make significant investment into New Zealand’s infrastructure since establishing the National Infrastructure Unit (NIU) in 2009 and pumping an initial NZ$7.5b into a handful of immediate infrastructure priorities. Earlier this year, the NIU released its second iteration of the Plan (with the third to follow in 2014). The Plan indicates the Government has tagged NZ$17.5b for investment in infrastructure over the next four years although does not provide any new information on specifically how that funding will be allocated. Instead, the Plan outlines a 20 year strategic framework for infrastructure, the perceived challenges to implementation, some shorter term priorities and a three year action plan leading up to the final instalment of the Plan in 2014. The principal reason given for the lack of detail in the Plan was that the precise allocation of funding is still a work in progress meaning many investment decisions are yet to be made. However, the government also stated the aim of the Plan was to shift focus away from specific infrastructure projects towards a strategic framework that government and the private sector can work towards over the longer term. Some media commentary has viewed this direction as a logical precursor to the anticipated partial sell down of some state infrastructure assets (should the government win a second term in the election this November) in that it provides would-be investors with some certainty in respect of allocation of resources, decision making and the regulatory environment. With that aim in mind, the Plan conveys the vision that, by 2030, New Zealand’s infrastructure will be resilient, coordinated and contribute to the country’s economic growth and quality of life. The Plan then assesses the state of five key infrastructure sectors (transport, telecommunications, energy, water and social) against six guiding principles intended to provide a platform for infrastructure development and
promote more co-ordinated decision making for infrastructure investment. While the Plan’s overall message (somewhat surprisingly) is that New Zealand’s infrastructure is performing reasonably well, it identifies a number of areas where it is perceived that improved performance would stimulate economic growth. Although opportunities for improvement were indentified across a number of the sectors assessed, the water sector was singled out as performing least successfully at present and in need of the closest attention in terms of governance, management, funding and regulation. Conversely, transport was highlighted as performing the most successfully out of the sectors reviewed and which may possibly be due in part to significant recent investment after years of neglect. The two major earthquakes in Canterbury over the last 12 months are noted as having highlighted some useful lessons for ensuring resilience in infrastructure assets as well as requiring significant additional infrastructure spending to rebuild the region. Auckland is also singled out as facing some significant infrastructure challenges as a result of its position as New Zealand’s fastest growing metropolitan area by a considerable margin. A further useful aspect of the Plan is that it identifies goals for each of the five sectors assessed and the work programmes being undertaken to achieve those goals. These in turn feed into the broad steps the government has committed to undertaking in the three year action plan mentioned above.
Although the Plan lacks any meaningful detail in terms of how the various goals and priorities will be achieved, it does take an important step in signalling the government’s commitment to key infrastructure sectors and providing a road map against which the specified goals can be managed. To that extent, the Plan has been received as providing some comfort for local and foreign private sector investment and will be a useful scorecard against which progress can be marked when the third instalment of the Plan is released in 2014.
This article was written by Dominic Lundon, a partner in the Auckland office of Buddle Findlay, one of New Zealand’s leading law firms. Dominic has extensive experience in property sector corporate and commercial transactions. He has particular expertise in infrastructure and utilities projects gained in New Zealand, Australia and the United Kingdom. Dominic advises large corporates, institutions, funds and local government on property, project development, acquisition and divestments and ownership structures. Dominic can be reached on +64 9 363 0665 or email dominic.lundon@buddlefindlay.com
In terms of priorities over the next three years, the Plan identifies the following: • Rebuilding Canterbury following the earthquakes • P roviding a comprehensive approach to infrastructure investment in Auckland • I mproving the management of government owned social infrastructure assets such as prisons hospitals and schools • I nvesting in transport infrastructure that supports growth in exports • I mproving government’s ability to monitor performance across all infrastructure sectors.
Dominic Lundon
Buddle Findlay
NEWS | deals >>
Firm: Clayton Utz Lead Lawyers: Stuart Byrne, Geoff Hoffman, Kirsten Fish Client: Macquarie, Royal Bank of Scotland Firm: Freehills Lead Lawyer: Andrew Pike Client: Archer Capital (seller) Firm: Mallesons Stephen Jaques Lead Lawyers: Meredith Paynter, John Humphrey, Scott Heezen, Philip Ward Client: Issuer Super Retail Group (Super Retail) • This acquisition by Super Retail includes a A$334 million PAITREO style entitlement offer. The strategy behind the acquisition is to leverage Super Retail’s retail and supply expertise and build Rebel Sport’s position as national leader in sporting goods retailing • Clayton Utz head of Equity Capital Markets, Byrne, was one of the lawyers to bring the PAITREO structure to market. It was first used by Origin Energy in its A$2.3 billion transaction in March • Goodman Fielder’s latest equity raising was also done using the PAITREO model. Freehills and Mallesons were the main advisors on that deal • Freehills has a long history advising Archer Capital. Recently the firm also advised the private equity firm on its purchase of Quick Service Restaurant Holdings (QSRH) from Quadrant (in July) and WA-based Brownes fresh dairy and fruit juice business (in March)
| debt | ►► Leighton Holdings Indonesian mining operations financing – A$600 million Firm: Allen & Overy Client: PT Leighton Contractors Indonesia; PT Thiess Contractors Indonesia Firm: Allens Arthur Robinson Lead Lawyer: Rod Howell Client: ANZ • Deal provides lease financing for Leighton Holdings’ two operating
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subsidiaries in Indonesia: PT Leighton Contractors Indonesia and PT Thiess Contractors Indonesia • Allens Arthur Robinson has also advised relationship client ANZ along with United Overseas Bank (UOB) and Sumitomo Mitsui Banking Corporation (SMBC)on the recent $190 million loan to Sinochem International Overseas pte
| debt | ►► Woolworths offer of notes – A$500 million
• The Diamantina Power Station (DPS) will be underpinned by a long term Energy Supply Agreement with Xstrata and a Power Purchase Agreement with Ergon Energy • The Freehills and Greenwoods & Freehills teams worked closely with AGL Legal led by senior in-house lawyers Chris Reynolds and Kirstin Mann and with the AGL Tax and AGL Treasury teams • An in-house team lead by Nevenka Codevelle also advised the APA Group
| project finance |
Firm: Clayton Utz Lead Lawyer: Stuart Byrne Client: Woolworths
►► Northern Territory Correctional Precinct PPP
Firm: Mallesons Stephen Jaques Lead Lawyers: Joseph Muraca, Ian Paterson Client: Joint Lead Managers
Firm: Allens Arthur Robinson Lead Lawyer: Phillip Cornwell Client: Financiers
• Clayton Utz partner Byrne has also advised Woolworths on a separate institutional and retail offer and ASX listing of Hybrid Notes to raise A$600 million and the subsequent redemption of Woolworths Income Notes • Mallesons has previously acted for J.P Morgan as one of the joint lead managers on the Adelaide/Bendigo Bank A$300 million equity raising conducted in 2009
| Energy & resources | ►► Diamantina Power Station development – A$500 million Firm: Clifford Chance Lead Lawyer: Mark Pistilli Client: APA Group Firm: Freehills Lead Lawyers: Rob Merrick, Sharon Wilson, Toby Anderson, John Angus Client: AGL Energy Firm: Mallesons Stephen Jaques Lead Lawyes: Craig Rogers, Dominic Bortoluzzi, David Bell, Matthew Austin, Scott Budd Client: APA Group and AGL Energy Limited consortium
– A$495 million
Firm: Mallesons Stephen Jaques Lead Lawyer: Mark Upfold Client: Northern Territory Government • This is the second PPP project delivered in the Northern Territory and the first correctional services PPP for the Territory. Early construction works have commenced • The private sector will finance, build and service a Correctional Centre, Secure Mental Health and Behavioural Management Facility, and a Supported Accommodation and Program Centre for communitybased offenders scheduled for completion in 2014 • Mallesons Stephen Jaques also advised on successful completion of the first Northern Territory PPP
| M&A/resources | ►► OneSteel acquisition of WPG iron-ore assets – A$350 million Firm: Allens Arthur Robinson Lead Lawyers: Andrew Finch, Nicholas Adkins Client: OneSteel Firm: Maddocks Lead Lawyers: Jeff Goss, Andrew McNee Client: WPG Resources Limited (WPG)
• OneSteel has acquired the ironore assets of WPG for around A$350 million. The transaction was completed on 6 October 2011, following approval of the acquisition by WPG shareholders on 4 October • Maddocks also negotiated a $140 million project based cash Bridge Facility from OneSteel as part of the sale • Allens Arthur Robinson has advised OneSteel on various past transactions, including its November 2010 acquisition of Anglo American plc's Moly-Cop and AltaSteel businesses in the Americas for US$932 million • Maddocks also advised WPG on an A$85 million capital raising through a combined placement and rights issue. The firm also advised WPG on the prospective A$140 million project financing of the Peculiar Knob Project
| equity | ►► Goodman Fielder capital raising – A$259 million Firm: Freehills Lead Lawyers: Rebecca MaslenStannage, Tim McEwen Client: Goodman Fielder Firm: Mallesons Stephen Jaques Lead Lawyer: David Friedlander Client: Underwriters Citi Bank and Credit Suisse • This is the second capital raising conducted using a PAITREO structure, a renounceable entitlement offer transaction originally used by Origin Energy in March for its A$2 billion capital raising • Freehills has advised client Goodman Fielder on past transactions, including the 2009 sale of its commercial fats and oils business for A$240 million • Mallesons Stephen Jaques has advised Citi as underwriter to a number of other transactions, including when Citigroup was underwriter to the A$200 million convertible bond issue and placement by the Commonwealth Property Office Fund (CPA)
Australasian Legal Business ISSUE 9.11
NEWS | energy >>
Passing of Clean Energy Bill set to open flood-gates, say lawyers
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awyers are awaiting a flurry of activity as the introduction of a carbon price draws nearer. The Clean Energy Bill 2011 passed through the lower house of the Australian parliament on October 12 and is now being reviewed by the Senate. Legal commentators have reacted to the news with optimism that corporates who had been holding back on taking action will now step up a gear as the start date of July 1 2012 becomes a reality. Norton Rose global head of climate change Anthony Hobley said many Australian businesses had been reluctant to take action because of the collapse of the Carbon Pollution Reduction Scheme. “They have decided to wait, and have taken an ‘I will believe it when I see it’ approach,” said Hobley. “But from now on they will need to move quickly, because the time frame is incredibly short, and there are a number of key differences between this scheme and the CPRS.” A number of changes were made from the draft legislation released in August to the final bill passed yesterday, including the provision for large consumers of fuel to opt into the scheme, including airlines. Under the original plan, the aviation, shipping and rail industries were to be excluded and instead pay higher fuel excise. “There is significant interest in the decision to allow those companies to opt into the carbon price scheme,” said Hobley. “The changes to rules for companies which use large amounts of liquid fuels will create a lot of work for us.” But it’s not just the climate change lawyers who are set to benefit from the scheme. Hobley predicts many legal practice areas will be inundated with work relating to the introduction of not only the carbon price, but also the
www.legalbusinessonline.com
green energy fund. “I'm expecting to see a boom in the renewable energy, green energy and clean energy space,” he added. DLA Piper tax partner James Newnham is also expecting a period of high activity as a result of the carbon price introduction. “As we saw in the UK and Europe, there was a lot of work arising as a result of their Emissions Trading Scheme,” he told ALB. “There is going to be a lot of work generated for areas that are not directly associated with the green energy economy.” Legal practice areas such as M&A, tax, financing, projects and many more will all be in demand as the start date draws near, said Newnham. “I think every lawyer in every affected area will
need to understand the core rules and then the consequential effect on their particular areas,” he added. “In M&A deals, particularly where there is an overseas purchaser, they are asking what the impact of the carbon price will be on the target. And what the target’s ability will be in dealing with the new scheme and what potential impact it could have on the profitability etc of the target.” Newnham said big emitters who would be paying the carbon price directly had more certainty than those companies which rely on products or services from those emitters. “There is still a lot of uncertainty about whether the cost will be passed on and if it is, how will they know,” he said. ALB
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NEWS | analysis >>
Analysis >>
Coal collective A disparate group of coal exporters has banded together to make stage one of Queensland’s Wiggins Island Coal Export Terminal a reality – a deal which could show the way for the rest of infrastructure-constrained Australia.
T
he Wiggins Island Coal Export Terminal is a project by existing and potential coal exporters located in Gladstone, Queensland to provide increased long term export coal capacity. The facility is expected to serve coal companies from the Surat and Bowen Basins in particular and will be located at Golding Point, to the west of the existing RG Tanna and Barney Point terminals. Financial close has now been reached on the first stage of the project, no doubt to the relief of all the lawyers involved. The deal was significant because of the novel structure and the multiplicity of parties. Sixteen coal producers, including majors BHP, Rio Tinto and Xstrata, have come together to underwrite the project and finance has been provided by over 20 financiers. Stage one of the project is worth A$2.5 billion and eight stakeholders have successfully secured an allocation of port capacity: Aquila Resources, Bandanna Energy, Caledon Resources, Cockatoo Coal, Northern Energy Corporation, Wesfarmers Curragh, Yancoal and Xstrata Coal. This stage of the terminal is planned to be in operation by 2014. Competition for the remaining stage is expected to be fierce. Major advisors on the deal were Blake Dawson (advising the miners’ syndicate) and Allens Arthur Robinson, advising the senior lenders’ syndicate and mezzanine financiers. Clifford Chance also advised one of the international miners involved, Sumisho Coal Australia. Freehills advised the
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Queensland Treasury and Mallesons advised Gladstone Ports Corporation, which will operate the terminal.
Precedent
Wiggins Island is not the first multiuser funded port facility for Australia – a similar concept was used in Newcastle under the auspices of the Newcastle Coal Infrastructure Group (NCIG). However, lawyers say that Newcastle was rather a different case – certainly the complexity of the Wiggins Island project causes it to stand alone. “The Newcastle deal helped get the banks comfortable,” said Freehills partner Jay Leary. “However, Wiggins Island was different because of the complexity of its land arrangements and the number of miners involved. They really are a disparate group – at one end there’s Xstrata and then [at the other end] some completely new start up junior miners – that creates financing challenges.” Given the current economic climate, financiers were extremely concerned about the high level of risk at play when it came time to finalise the stage one agreement. “There was a completion risk; the bank group of financiers were concerned about talk of labour skill and steel shortages; there was risk of cost over-runs,” notes Leary. “The finance structure had to deal with that by including contingencies and cost overrun facilities.” However, reaching financial close will have positive implications for other port facilities such as Abbot Point which are still on the drawing board. “Timing was
►Wiggins ► Island Coal Export Terminal Stage One project financing – quick facts Firm: Allens Arthur Robinson Lead Lawyers: Phillip Cornwell, Rob Watt, Nicholas Adkins Client: senior lenders’ syndicate/ mezzanine financiers Firm: Blake Dawson Lead Lawyer: David Mason Client: Wiggins Island Coal Export Terminal (WICET) Firm: Clifford Chance Lead Lawyer: Jason Mendens Client: Sumisho Coal Australia Firm: Freehills Lead Lawyer: Jay Leary Client: Queensland Treasury Firm: Mallesons Stephen Jaques Lead Lawyer: Robert Jackson Client: Gladstone Ports Corporation (GPC)
really important because this deal was setting a precedent for how industry funded financing will occur in the future,” adds Leary. “The rest of the industry is watching really closely – for Australasian Legal Business ISSUE 9.11
NEWS | analysis >>
Robert Jackson
David Mason Jay Leary
Phillip Cornwell
Jason Mendens
example what’s happening with Abbot Point and major rail upgrades– whether it would all be industry funded. It’s setting a really good precedent.” The Wiggins Island Terminal will be operated by the Gladstone Ports Corporation, although some commentators have suggested that there is no reason why it could not be operated by a third party private sector operator. Still, GPC appears to be an acceptable option. “It has a good image and seems to be well run – I don’t think there was any sign of any of the banks having issues with GPC’s ability to operate the terminal,” said one lawyer. “Gatherers and shiploaders and the duties they perform are pretty mechanical.”
Alternatives and the future
Lawyers involved with the Wiggins Island deal believe the model used is likely to be adopted in other similar projects. “Going forward you will see a combination of both multiuser and dedicated coal terminals,” www.legalbusinessonline.com
says Mallesons lead partner Robert Jackson. “The government will be concerned about ensuring there is reasonable opportunity for small miners to get established and be given the opportunity to grow and get their product out. Wiggins Island is a case in point. That’s the first new full greenfield port in Queensland in about the last 40 years. I’d be really surprised if out of these new port developments on the way – Abbot Point, Dudgeon Point – at least one or two aren’t multi-user.” According to Leary the only other realistic alternative is for these projects to be funded by infrastructure companies such as Brookfield. “I don’t think it would be possible or likely to see a PPP type arrangement. The most likely option is an infrastructure investor,” he notes. It is possible that multi-user infrastructure ownership is not the most convenient model for miners. However, Leary says the industry
seemed quite happy with the model and taking collective control of their own destiny. “I think it depends on the make up of the consortium,” he observed. Jackson says that as a general rule, miners would prefer to have a say over the whole logistics, from mine to port. “They probably felt that inability to have control over rail development and port development has constrained their ability to grow. They know their business and prefer to be in control of it from go to whoa,” he said. “At the end of the day, this deal will deliver the benefits it should deliver. It’s a great result for industry and I think it will be a progressive construction site for the next five years and enable industry to support itself. The State gets ultimate benefit from jobs, major economic benefits that will flow from investment and royalties that it will deliver over time. This was a great result for Queensland and the country.” ALB 15
NEWS >>
appointments ►► lateral partner hires Name
Practice area
Organisation coming from
Organisation going to
Tony D’Agostino
Property
Herbert Geer
Swaab Attorneys
Alexander Danne
Banking and finance
Allens Arthur Robinson
Gilbert + Tobin
Simon Davidson
Corporate
DLA Piper Dubai
DLA Piper Australia
Frances Drummond
Intellectual property
Freehills
Norton Rose Australia
David Fintan
Litigation
Commonwealth government DLA Piper Australia
Andrew Johnstone
Corporate
Holman, Fenwick & Willan London
DLA Piper Australia
Andrew Chew
Construction
Baker & McKenzie
Corrs Chambers Westgarth
Marko Komadina
M&A
Gilbert + Tobin
JWS
Michael Bywell
Dispute
SJ Berwin
JWS
Les Koltai
Real estate
Blake Dawson
DLA Piper
Rodney Craig
M&A
Kensington Swan
Minter Ellison Rudd Watts
►► partner promotions Firm
Name
Practice area
Location
Sparke Helmore
Carlie Holt
OHS
Sydney
Sparke Helmore
Luke Holland
OHS
Adelaide
TurksLegal
Darryl Pereira
Financial services
Sydney
TurksLegal
Michael Lamproglou
workers compensation
Sydney
Herbert Geer
Swaab Attorneys
Swaab Attorneys builds partnership Tony D’Agostino has joined Swaab Attorneys as a partner, expanding the firm’s capability in the property team. Joining from Herbert Geer, D’Agostino has acted for a range of large corporations and private clients and has Tony D’Agostino built a wealth of knowledge in property investment and development having worked for some of the major players in this space. His practice focuses on commercial property acquisitions and disposals, leasing, property development, property joint ventures and strata and community title developments. “Tony brings a new skill set to the team in regards to his experience and knowledge of the property sector, which we believe our clients will benefit from,” says Swaab property partner Mary Digiglio.
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DLA Piper Dubai
DLA Piper Australia
HFW London
DLA Piper Australia
Cwlth government
DLA Piper Australia
DLA Piper continues to rebuild partner numbers DLA Piper Australia has added three new senior lawyers to its ranks. Corporate partner Simon Davidson joins the Melbourne office, relocating from the DLA Piper Dubai office, while corporate consultant (soon to be partner) Andrew Johnstone Andrew Johnstone joins from Holman, Fenwick & Willan London. He will be based in the Perth office. In Canberra former senior government lawyer, David Fintan, has joined the local DLA Piper office. Davidson’s primary expertise is equity capital markets. His experience encompasses public capital raisings (including global/institutional offers, IPOs, dual listings and private placements) across Australia, UK, North America and the Middle East. Johnstone has been appointed to the firm
as a consultant until he is admitted in Western Australia, at which point he will join the partnership. He specialises in M&A, corporate finance and contracts, with a particular expertise in the oil and gas and transport sectors. Johnstone has been a consultant at Holman, Fenwick & Willan in the UK since 2004 and prior to this was a partner at Stephenson Harwood. Fintan has joined the DLA Piper litigation and regulatory team from the Department of Families, Housing, Community Services and Indigenous Affairs where he was the manager of the commercial and indigenous law branch and public law branch. His legal expertise covers administrative and constitutional law, machinery of government and the Commonwealth financial framework among others.
Freehills
Norton Rose
Norton Rose drums up a new IP partner Intellectual property (IP) partner Frances Drummond has joined Norton Rose Australia from Freehills. Drummond has a broad skill base in contentious and non-contentious trade mark matters including front end trade mark portfolio management, advisory, transactional and disputes, as well as experience working for several leading Australian and international companies. She has previously worked in the UK and Hong Kong, where she was a partner and solicitor at Norton Rose Australia’s predecessor firm, Deacons, from 1995 to 2000.
Allens Arthur Robinson
Gilbert + Tobin
G+T recruits banking specialist from AAR Gilbert + Tobin has appointed former Allens Arthur Robinson senior associate Alexander Danne as a partner in its banking and finance group. Danne specialises in project finance, PPPs and infrastructure finance, property finance, syndicated finance, and acquisition and leveraged finance work. This announcement follows the appointment of corporate restructuring partner Dominic Emmett from Corrs Chambers Westgarth.
senior associate to partner
New OHS laws spark partner promotions Sparke Helmore Lawyers has promoted two new staff to the partnership. Carlie Holt and Luke Holland have been appointed as partners in the firm’s workplace group.
Australasian Legal Business ISSUE 9.11
NEWS >>
Holt has been with Sparke Helmore for almost 10 years and is based in Sydney. She advises and represents large government bodies and companies on various coronial and work, health Carlie Holt and safety matters. Holland is one of South Australia’s leading experts in the areas of OHS and employment law. Before joining Sparke Helmore five years ago and returning to his hometown of Adelaide Holland worked in the United Kingdom in a corporate in-house role and for the British Crown. National managing partner Jesse Webb said the appointments come at a time when clients are increasingly focusing on the implications of national harmonisation of workplace health and safety Luke Holland laws, which starts next year. With 34 lawyers, including eight partners, Sparke Helmore now has one of the largest teams of dedicated workplace health and safety lawyers across Australia.
senior associate to partner
TurksLegal adds two more partners Sydney and Melbourne-based TurksLegal has promoted two lawyers to the partnership. Financial services specialist Darryl Pereira and workers compensation specialist Michael Lamproglou will take the total number of partners at the firm to 25. Pereira has more than 10 Darryl Pereira years’ experience in financial services and has worked on many large transactions including documenting Australia’s largest group life insurance transaction for one of the firm’s clients last year. He has also represented large financial institutions in major disputes and litigation. Lamproglou is a workers compensation lawyer who focuses on section 151Z recovery claims for insurers and employers. His practice involves recovering compensation payments from Michael Lamproglou a wide range of negligent third parties under various legislative regimes including motor accident, civil liability and civil aviation. www.legalbusinessonline.com
Baker & McKenzie
Corrs
Corrs builds partnership ranks again Former Baker & McKenzie partner Andrew Chew has joined Corrs Chambers Westgarth as a partner in the Sydney construction group. A specialist in major projects and energy and resources, Chew is also a qualified engineer and a Mandarin speaker. He has wide-ranging experience across various infrastructure and resources fields, including public-private partnerships and alliance projects. Chew’s most recent experience includes: LNG projects (Curtis LNG, Gladstone LNG), major PPPs (Peninsula Link project, new Royal Adelaide Hospital, Mundaring Water Treatment Plant) and rail infrastructure projects (Regional Rail Link (Vic), South-West Rail Link (NSW), North-South Railway Andrew Chew (Saudi Arabia), Bangkok MRT)). He has also advised on significant resources projects, including the Mount Owen Mine, Ravensworth North Mine and Ulan West Mine developments.
Gilbert + Tobin
JWS
SJ Berwin
JWS
Blake Dawson
JWS
JWS acquires G+T partner, IT partner and Blakes SC Johnson Winter & Slattery (JWS) has appointed three senior practitioners including two partners in the firm’s Sydney office. New partner Marko Komadina is a M&A specialist who was most recently a partner at Gilbert + Tobin. He specialises in listed company takeovers, schemes of arrangement, demergers and corporate restructures. Michael Bywell has also joined JWS as a partner from UK firm SJ Berwin. A senior dispute resolution lawyer, Bywell has specialist expertise in managing disputes for participants in the IT sector and has previously practised in New Zealand as well as the UK. Also joining JWS is Andrew Williams, a special counsel from Blake Dawson, with extensive experience in negotiated mergers and acquisitions, foreign investment, cross-border transactions, joint ventures, private equity and major commercial transactions.
Blake Dawson
DLA Piper
Blakes real estate partner finds new home at DLA DLA Piper has appointed Blake Dawson partner and internationally recognised real estate specialist Les Koltai to its partnership, with a start date in early 2012. Koltai advises major domestic and international corporations, sovereign wealth funds, foreign pension funds, domestic and foreign private investors, institutional funds, funds investors and investment managers, with a particular focus on cross border real estate transactions. With the increased interest over recent years from global real estate investors into the growth markets of Australia and Asia, Koltai has been involved in significant transactions including a number of iconic assets. Blake Dawson will re-brand to the Ashurst name in March 2012, while at the same time the Asia operations will merge. Koltai is the first senior defection ahead of the official changeover.
Kensington Swan
Minters NZ
Rodney Craig joins Minter Ellison Rudd Watts’ partnership Minter Ellison Rudd Watts has appointed M&A and capital markets specialist Rodney Craig as a partner in the firm’s Wellington office. Rodney was previously a partner at Kensington Swan, where he Rodney Craig began his career in 1999. Rodney advises on complex mergers and acquisitions in a range of industries, and assists early-stage and growth businesses with their corporate structures, governance and capital raising. In the capital markets field Rodney has acted for listed companies, investors and market participants on takeovers and other significant transactions, as well as compliance with securities markets and takeovers rules and regulations. In announcing the appointment John McCay, Head of Wellington’s corporate and commercial team, said: “Rodney has an excellent reputation in the market and attracting an established partner of such a high calibre is strong evidence of the strength of the firm. “ The Wellington office has also recently welcomed three new senior associates – new recruits Andy Glenie, previously with Russell McVeagh, and Rachael SchmidtMcCleave, from the Crown Law Office, and Catherine Levermore who returns to the firm after working for Clifford Chance and Barlow Lyde & Gilbert in the UK.
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NEWS >>
us report DLA Piper unveils all-equity partnership model DLA Piper has released plans to introduce an all-equity partnership in its non-U.S business. Existing equity partners are a mixture of full equity, senior fixed-share equity and fixed-share equity members. Around one third of all partners also fall into each category. Hence the desire to move all to a single class, and the launch of a consultation process aimed at achieving that objective. According to reports in The Lawyer that process will require an injection of new capital into DLA Piper by fixed-share partners. The firm’s UK regional managing partner, David Bradley, told The Lawyer that the move was not a revenue raising exercise, adding that the firm is “very well funded”. “If we’d done this while our profitability was going down some of our partners would have understandably questioned our motives. But we’re planning for enhanced profitability this year. This move is about looking to align the interests of all the partners in the firm,” he concluded. DLA Piper also announced that part of the changes will include evening out voting rights among partners. Quinn Emanuel fights to stay on AIG litigation amid conflict claim Quinn Emanuel Urquhart & Sullivan has said it will dispute an attempt by the Bank of America (BoA) to kick the firm off its $10 billion litigation with insurance giant AIG over an alleged conflict of interest. A judge has been requested to remove Quinn Emanuel from the case by BoA amid
allegations of “flouting the ethical rules”. BoA is claiming Quinn Emanuel partner Marc Becker previously acted for Merrill Lynch, before it was taken over by BoA meaning the firm is conflicted out of the current litigation. Becker has, however, already been removed from the case, where AIG is suing BoA over alleged mis-selling of $28 billion worth of mortgage-backed securities bought before the 2008 economic downturn, as cited in a Reuters report. GTM to provide Colt employment advice following BLP deal collapse Greenberg Traurig Maher (GTM) will be the sole provider of employment law advice to Colt Technology Services one year after a deal on similar terms with UK firm Berwin Leighton Paisner’s (BLP) managed legal services arm collapsed. GTM won the appointment through a contested proposal process involving a number of other firms. The firm will give UK employment law advice to Colt’s 12 European offices for a term of three years, in addition to helping with HR and management training. A spokesperson for Colt confirmed to The Lawyer that the company is constantly looking for legal services and looking for the best possible arrangements it can find, when asked whether GMT might end up providing advice in other areas. The deal with BLP collapsed despite a memorandum of understanding in operation because parties could not agree on exact terms before the tie-up was to be finalised.
ROUNDUP • Clifford Chance has hired former U.S Attorney Office prosecutors David Raskin, Christopher J Morvillo, and Edward C O’Callaghan as litigation partners in its New York office. The trio join Clifford Chance’s White Collar, Regulatory Enforcement and Government Investigations practice group in early November • Latham & Watkins has lost one of its high yield practitioners to a partnership with Clifford Chance. Fabio Diminich, an associate at Latham & Watkins, was appointed partner by Clifford Chance in its European High Yield practice on October 13. Diminich is the firm’s sixth high yield partner in London • Quinn Emanuel Urquhart & Sullivan is set to launch a Moscow office following the hire of two partners from Dechert LLP. Litigators Ivan Marisin and Vasily Kuznetsov left Clifford Chance for Dechert in 2010. Marisin has advised on over 100 major litigations and arbitrations worldwide • Allen & Overy (A&O) has hired O’Melveny & Myers financial services regulatory partner Bill Satchell for its Washington DC practice. Satchell joins the three O’Melveny partners hired by A&O in July this year to launch its Washington office. Since July, the practice has expanded to include 10 lawyers • Mexican firm Natividad Abogados has become the latest to join the employment law alliance L&E Global. Natividad becomes the 11th firm to join the alliance, launched earlier in 2011. Canadian firm Filion Wakely Thorup Angeletti and U.S firm Jackson Lewis are also members of L&E Global • Bennett Jones, Blake Cassels & Graydon and Vinson & Elkins are lead advisors on Sinopec’s £1.88 billion (C$3 billion) takeover of Canada’s Daylight Energy. Vinson & Elkins is Sinopec’s long-term international legal advisor. Bennett Jones is the Chinese company’s Canadian advisor. Blake Cassels is advising Daylight
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Industry >>
Atanaskovic Hartnell unveils London office A
tanaskovic Hartnell (AH) has opened a London office, managing partner John Atanaskovic has revealed. The office has been in operation since June, but the firm had opted to maintain a low profile until now. “Our competitors here in London and in Australia are gradually discovering what we are up to in London anyway,” Atanaskovic told ALB. The office is a separate legal entity from the Australian operation and is at present performing high level corporate advisory and M&A work for UK and European companies in direct competition with the UK majors. The London office is mainly advising on UK law. However, it is also advising on cross border matters, especially Australian M&A matters and also Europe-based transactions. The London office has four lawyers at present and one partner in John Atanaskovic, who intends to split his time evenly between Sydney and London. Atanaskovic will remain managing partner of both operations. Atanaskovic said that there were no definite plans at present as to the ultimate size of the London office. “The expectation is that we will soon have one or more UK-recruited people as partners; we will see how it goes in terms of continuing client support, but indications so far are very encouraging,” he said. ALB
Our competitors here in London and in Australia are gradually discovering what we are up to in London anyway John Atanaskovic, Atanaskovic Hartnel
Australasian Legal Business ISSUE 9.11
NEWS >>
Industry >>
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Mallesons signs LPO agreement with Integreon M
allesons Stephen Jaques has become the first Australian law firm to sign a formal agreement with legal process outsource provider Integreon. Mallesons managing partner Tony O’Malley said the decision to provide integrated LPO services was based on client demand. “It’s about clients and responding to the demand for LPO in our client base,” said O’Malley. “The intense cost pressures our clients are under and the broader consolidation and globalisation of the legal sector means that the demand for legal process outsourcing is stronger than it has been for some time.” Integreon was chosen by Mallesons following an intensive 18 month process of due diligence, including nine months of working together on a pilot matter for a major Mallesons client. Mallesons director Michelle Mahoney spearheaded the due diligence process, which resulted in Integreon being selected from a shortlist of four. According to O’Malley, the benefits of providing clients with an LPO offering extend past cost savings. He said the speed at which the work was undertaken, the faster turnaround times and a scalable workforce were all of significant benefit. “It also has potential there for clients when they want it for foreign language capabilities, business continuity and accessing a broader talent pool across the region and potentially globally,” he added. Mallesons will still bill clients for the cost of briefing and supervising the Integreon team. Michelle Mahoney said that the supervision would ensure that the quality of work is of a high standard and ensuring issues are addressed as they arise. “We have to make sure the efficiencies remain the same,” she said. CEO of Integreon, Bob Gogel, said clients in the market could expect cost savings of between 30 and 50 percent by using Integreon. “We are very excited about the [Australian] market,” said Gogel. “When we go out and talk to general counsels they ask why the Australian market has not moved on this.” Gogel was quick to point out that staff at Integreon, while legally trained, are not lawyers: “All of our team will be working under the supervision of a senior lawyer from Mallesons,” he said. “We are not in the business of competing with law firms; I know some of our competitors have moved from LPO and are beginning to practice law; we think that is a strategic mistake.” O’Malley said the move would not affect Mallesons’ graduate intake. “It won’t change the graduate intake at all,” he said. “There is some overlap in what the graduates do in the first six months, but not much. We don’t see this as being a factor to decrease grad numbers.” Integreon has 17 offices across North Amercia, Asia, Africa, Europe and India. It already partners with nine of the 10 top global law firms. ALB www.legalbusinessonline.com
In-house Q&A
Chris Ryan Managing Counsel
The Shell Company of Australia Limited
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In your opinion, why have in-house lawyers become an increasingly indispensable part of an organisation?
In-house lawyers continue to fulfil an important role in an organisation by delivering cost-effective legal services that are well tuned to the organisation’s context. This can be thought of as a legal department’s “implementation” role, and includes knowledgably managing the contribution of external lawyers. Increasingly there is recognition that in addition to providing professional services to an organisation, a vigorous, well-informed and independent legal department plays a crucial role in the effective governance of an organisation, which is, or ought to be, uppermost in the minds of the directors, investors and regulators. Good governance covers many considerations but includes the promotion of ethical decisions and sound risk management, and in-house lawyers are usually well placed to support these aims through a combination of their training and skills and their knowledge of what is happening in the organisation. Further, the experience and different perspective of in-house lawyers is often sought when planning the strategic direction of the organisation or making major decisions.
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In recent times, the role of the General Counsel has diversified into a multi-faceted role, (where the General Counsel can wear the ‘hat’ of Lawyer, Legal Manager, Compliance Manager, and Company Secretary). In your opinion, do you believe this has increased your risk profile?
There has always been some degree of risk associated with the in-house role, where the client and employer are one. This requires an in-house lawyer to be sensitive to the special ethical challenges of in-house practice. Taking on further roles can exacerbate this risk, requiring the General Counsel to be eternally vigilant. But these additional roles can also serve to mitigate risk. Through accountability for activities concerned with legal management or compliance, the General Counsel has the opportunity and the clear licence to actively promote a culture of integrity and compliance and can receive early warning of threats to this culture. Such positions of influence in these important areas can complement the legal role and its attendant ethical obligations.
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In your opinion, what do you consider to be the main challenges you and your team will face in the coming twelve months?
Our challenges fall into three principal categories. First, there is the seemingly universal and increasing pressure to meet the day-to-day expectations of our business colleagues while reducing costs. Indeed, if anything, my business colleagues would like to see even more support from the in-house team. This necessitates close collaboration with internal clients and candid conversations about prioritisation. Second, there are the key business challenges that our industry faces. In an ultra-competitive and highly regulated environment, succeeding in the business of refining, distribution and marketing of transport fuels and complementary products requires innovation and change and our legal department is expected to not only accept this, but embrace it and assist the business as it changes. Third, as the regulatory environment becomes ever more complex there is greater demand from our business colleagues for clear advice on the implications. An in-house department that is able to simply and succinctly deliver sophisticated and practical advice will be very highly regarded.
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NEWS >>
Industry >>
uk report Largest UK firms to receive SRA ‘relationship manager’ The Solicitors’ Regulation Authority (SRA) has released a report which includes plans to assign relationship managers to large UK firms to “identify, assess and address” risks under the new regulatory regime. The report follows a year-long pilot, involving 19 firms, which found that larger global firms have “a greater range of issues that require greater engagement to understand.” According to the plans outlined in the report, firms will be scored against the potential impact they could have on the SRA’s regulatory objectives. Those who score in the ‘high risk’ category are to be assigned their own relationship manager. The pilot divided up all the firms assessed into six categories: global and city, national, regional, niche, local and sole practitioner Canadian merger cost Norton Rose its chairman emeritus and ‘top arbitrator’ Norton Rose has announced that Yves Fortier, the firm’s chairman emeritus and well-known international arbitrator, has decided to leave the firm and pursue his arbitration career independently, after 50 years with Montreal-based Canadian legacy firm Ogilvy Renault. Prior to becoming chairman emeritus Fortier was chairman of Norton Rose from 1992-2009.
Fortier, aged 76 cited the increased potential for conflicts in his work as an arbitrator if he remained with a global firm that services clients all over the world. He said in a statement that this impacted on disputes between businesses and government. He also told The Globe and Mail that the decision was not easy and was a very emotional one: “This was a very emotional decision for me to take given that the firm has been my home for more than 50 years.” Quality Solicitors franchise receives PE injection The high street law firm franchise Quality Solicitors has secured a cash injection from private equity partnership Palamon Capital Partners (Palamon) with the aim of growing the brand across the UK. The amount of cash has not been disclosed. Under the agreement, Palamon will retain a majority shareholding in the Quality Solicitors franchise, but will not have a stake in the law firms which are members. Earlier in 2011, Quality Solicitors struck a deal with well known UK retailer WHSmith to place representatives in up to 500 of its retail outlets. The franchise was formed in 2008 and is the brainchild of UK barrister Craig Holt, who is supported by former Slaughter and May group head Michael Gradon.
ROUNDUP • The Judicial Appointments Commission (JAC) has announced it is inviting lawyers to apply for five Chancery Court judges to sit in the Rolls Building, in London. The criteria for the positions has also changed; lawyers no longer need previous judicial experience if they have significant litigation experience • DLA Piper and Hogan Lovells have won the leading advisory roles on the $3 billion SABMiller/Anadolu Efes tie up. SABMiller is being advised by Hogan Lovells, with Istanbulbased firm Herguner Bilgen Ozeke acting as Turkish counsel. DLA Piper and Turkish firm YukselKarkinKucuk Attorney Partnership are advising Anadolu Efes • Taylor Wessing has announced it plans to expand its practice into the Netherlands by this time next year. Managing partner Tim Eyles says the move will complement existing offices in France and Germany, and improve the firm’s ability to service U.S clients coming through London • Benelux law firm Nauta Dutilh has opened an IP and technology law practice following the hire of in-house lawyer Vincent Wellens. Wellens and his team join from communications company P&T Luxembourg • European firm Salans has hired Linklaters real estate partner Jesús Varela for its Madrid office. Varela, the fifth Madrid partner, focuses on real estate financing and refinancing transactions and will contribute to the firm’s banking & finance and restructuring practices. He brings with him two associates • The on-going dispute between Linklaters, its Italian alliance firm Gianni Origoni Grippo & Partners and investment bank Credit Suisse has been settled for an undisclosed sum. The settlement brings to an end two claims from 2001 over advice given to Credit Suisse on a deal with Parmalat
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Harmers joins global alliance of employment firms H
armers Workplace Lawyers has become the latest firm in the region to join forces with L&E Global, an international alliance providing counsel to employers on employment, labour, workplace privacy, employee benefits and immigration law. Harmers will join the 11 other member firms from Europe, North America, and the Asia-Pacific region that have formed an alliance to provide legal counsel to clients operating in what has increasingly become a multijurisdictional legal arena. New Zealand employment law firm Swarbrick Beck Mackinnon (SBM) joined the alliance in late August this year. Launched in January 2011 with six members, L&E Global is now comprised of member firms from Australia, Belgium, Canada, France, Germany, Italy, Mexico, the Netherlands, New Zealand, Poland, Spain, and the United States. Executive director of L&E Global Stephan Swinkels said the addition of Harmers greatly strengthens the alliance’s presence in the Southern Hemisphere, “and leverages our ability to guide clients operating in the important Asia-Pacific business environment”. Harmers Workplace Lawyers, which has offices in Sydney, Melbourne and Brisbane, was named Employment Specialist Firm of the Year at this year’s ALB Law Awards for the sixth consecutive time. ALB
Australasian Legal Business ISSUE 9.11
NEWS >>
news in brief >>
Industry >>
NSW wins ballot to host national legal regulators N
SW has been named as the home jurisdiction for the new National Legal Services Board and the Office of the National Legal Services Commissioner following a ballot earlier this week. Attorney-General Robert McClelland announced the decision to locate the board and commissioner in NSW as part of the National Legal Profession Reforms. “National reforms to the legal profession have been four years in the making and I’m delighted we can now confirm the final steps in implementing the scheme,” he said. The Law Society of NSW president Stuart Westgarth welcomed the decision: “The fact that the national board and commissioner will be operating from NSW is a sensible decision having regard to the fact that the NSW profession is the largest segment in Australia, representing more than 40 percent of the national profession,” he said. McClelland also announced that Victoria has agreed to introduce legislation to implement the reforms that will be replicated across participating jurisdictions. “These
reforms will serve the interests of both consumers and the legal profession by improving consumer protection, protecting the independence of the legal profession and ensuring access to justice,” he said. However, Law Institute of Victoria CEO Michael Brett Young said he had hoped the Attorney-General would choose Victoria as the venue for the board and commissioner as the jurisdiction has had its own legal services board and legal services commission since 2005 operating in a similar way to the proposed national model. “However, we are keen to see the introduction of the national reforms,” he added. The national regime will include just four of the eight states and territories in Australia: NSW, Queensland, Victoria and the Northern Territory, representing around 85 percent of Australia’s practising lawyers. Western Australia, South Australia, Tasmania and the ACT have yet to agree to participate. McClelland said he remains hopeful that the remaining jurisdictions will “come on board” once the scheme is up and running. ALB
Freehills flies high as Qantas drops flights The employment law team at Freehills is advising Qantas on its high profile dispute with unions. The firm has a long history of involvement in high profile industrial disputes, including the Waterfront dispute of 1998. Plaintiff firm Maurice Blackburn is advising the Transport Workers Union, which represents baggage handlers and ground crew; Hall Payne is advising the Australian Licensed Aircraft Engineers Association and Turner Freeman is advising the Australian International Pilots Association. Joydeep Hor, managing partner of employment law firm People, Culture, Strategies told ALB that there would no doubt be some hefty legal bills as a result of the events over the last weekend of October. “I have no doubt that there was not much sleep for any of the people involved in the hearings,” said Hor.
ACLA Awards finalists announced The finalists for this year’s Australian Corporate Lawyers Awards have been announced and some familiar names are on the list. Corporate Lawyer of the Year contenders are Brian Salter from AMP, Frances Russell-Matthews from The Westpac Group, Greg Watson from Metcash and Srechko Kontelj from Specsavers. Legal Team of the Year (large) finalists are the City of Sydney, the Fair Work Ombudsman and Incitec Pivot Limited. Legal Team of the Year (small) finalists include Ipswich City Council, The Leasing Centre and Thiess John Holland. Finalists in the category of government lawyer of the year include Don Markus from the Department of Broadband, Communications and the Digital Economy and Glenn Owbridge from the Australian Government Solicitor. Evan Holland from SP Ausnet and Lisa Chan from Curtin University are up for the Young Lawyer Achiever of the Year award that was won last year by SP AusNet’s Karena Reid. The awards will be held during the 2011 ACLA conference in Melbourne on November 24. The theme of the ACLA conference this year is In-House, In Vogue. Keynote speakers include Ita Buttrose AO OBE, John Quigley MLA, Andrew May, Richard Neville, Carmel Mulhern of Telstra, Michaela Healey of National Australia Bank and Debra Tegoni of Crown Melbourne.
The fact that the national board and commissioner will be operating from NSW is a sensible decision Stuart Westgarth, The Law Society of NSW
www.legalbusinessonline.com
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profile | managing partner >>
ALB 2011 MANAGING PARTNER SERIES
Nigel Ward, Australian Business Lawyers & Advisors:
Gently tapping at the Chamber door Australian Business Lawyers & Advisors has the distinction of being wholly owned by another entity – the NSW Business Chamber. CEO Nigel Ward explains to Renu Prasad why there’s life beyond (equity partnerships).
“We have been given a strong [mandate] to create our own culture and decide how the firm behaves internally and externally. If you want people to succeed, you need a very open culture.”
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S
later & Gordon and Integrated Legal Holdings may have drawn fame and infamy as Australia’s first listed law firms, but over in North Sydney there’s an equally interesting experiment in progress. Australian Business Lawyers & Advisors is a small outfit with a particular focus on the workplace relations and corporate/ commercial space. So far, so good. What is unusual about this firm, however, is that it is a wholly owned subsidiary of the NSW Business Chamber. ABLA’s directors therefore have no equity. CEO Nigel Ward spent nine years running his own business and knows a thing or two about the joys of controlling one’s own destiny. However, he’s not particularly concerned about the equity structure at ABLA. In his view, directors here do enjoy some
equivalent of equity because the firm’s bonus scheme acts as a de facto profit sharing mechanism. At first this argument seems, as Sir Humphrey Appleby might say, rather creative but as with everything Ward says, there is an undeniable logic. The legal profession has an avowed bias towards the partnership structure and particularly having an ownership stake. According to Ward, however, ownership per se is not necessarily the point. The point is having an ownership structure which is consistent with the culture and values you are trying to promote. “We have been given a strong [mandate] to create our own culture and decide how the firm behaves internally and externally,” says Ward. “If you want people to succeed, you need a very open culture - [Chamber Australasian Legal Business ISSUE 9.11
Photography by Thilo Pulch
profile | managing partner >>
www.legalbusinessonline.com
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profile | managing partner >>
CEO] Stephen Cartwright is himself very committed to the kind of culture we are trying to build.” It is a structure which relieves the firm of the relentless pursuit of growth for the sake of growth. “The Chamber has a higher purpose,” says Ward. “It is there to serve the interests of business. It wants returns from the firm as a commercial enterprise, but I’d describe those returns as reasonable in contrast to the sort of return that standard commercial law firms would expect. That allows us to do a whole host of things – it allows us to have a different culture, allows us to approach clients in a different way – clients understand we are there for a slightly different purpose than just making money – and to give young lawyers a life instead of the treadmill.” An example of what that means arose not long after Ward first joined the firm. He discovered that it was standard practice for an email to be circulated at 4pm each day, reporting on how much each person had billed. “If you were at the top, you felt good; if you were at the bottom you felt miserable no matter what your contribution was,” recalled Ward. “I quickly suggested that was fairly oppressive and not particularly motivating and the response to me was that was how law firms worked. Well, we don’t do that anymore – we don’t need stuff like 24
that. We have very motivated staff who are productive without things like that: they are buying the story that we’re doing something with a slightly different purpose from internal wealth creation and we can afford to have a bit more of a life.” The association with the Chamber means that the firm is ensured a reliable stream of work. “It gives us a relatively unique channel to market ourselves,” says Ward. “However, you have be careful when you’re marketing to a captive channel to be careful not to take it for granted – there are lots of examples of markets around the world where that happens.” Like many firms with a workplace advisory offering, ABLA is diversifying beyond the traditional model of legal advice: the firm is about to launch a frontline telephone advice unit providing basic employment law advice which members can access through their Chamber membership entitlements, with the option to retain the firm more formally if this is necessary. “All of that early discussion is dealt with under the membership arrangement rather than on an hourly rate – that’s a unique feature of the firm,” says Ward.
Clients
Ward is quick to point out that only about a third of the firm’s clients are Chamber members and that there is no exclusive focus on the SME market. ABLA has a couple of ASX20 clients and a “reasonable grab” of the ASX100 and 200. “You need to have clients at that level to have credibility,” says Ward. “However, I’d say the sweet spot for the business is largely around the client that employs about 200 to 1000 people, which probably doesn’t have dedicated in-house counsel or dedicated HR resources or if it does have them, it’s at a relatively lower level.” When asked to name some typical competitors, Ward nominates Gadens and FCB Lawyers, the latter particularly in Sydney.
Human resources: an obsolete function?
The purpose of human resources teams can often be enigmatic to an outsider. Functions which are traditionally
associated with HR – workplace safety, equal opportunity, recruitment and promoting a workplace culture – are more likely to be performed by line managers, usually with advice from inhouse legal advisors. What, then, is left for the HR manager? What value is the HR function to the modern corporation? Ward, previously a high level HR manager at Boral, is convinced of the importance of the HR function. “In any business, you will need some form of system and infrastructure around how people are managed and you can’t assume always that the manager is an expert in management or [employment] legislation,” he says. “It’s very important for HR to support and develop line management. Add to that senior HR people who understand the business, then they start to become a very important point of reference for the senior executive team.” Ward concedes that HR teams can overstep the mark. “Where I do get concerned is where you have companies with hundreds of HR managers and the HR team are managing people – but that’s a question of what model you adopt,” he says. “It’s an important function. It’s about the model and quality of people you’ve got, not whether you should have the function.” Ward says that there is a growing expectation that HR teams should have a solid grasp of the relevant legislation. “It will increasingly be a harder discipline than a softer one,” he predicts. But if legal skills are required, why not replace HR teams with in-house lawyers and compliance managers? Ward says that he is not sure that such a move would work. “There are different reasons why people get into law,” he says. “It’s too easy to caricature lawyers, just as we do with engineers – but when you look at why people stick with law, they tend to like the pure logic of it – they enjoy the management of very complex transactional activities. HR management, when done well, doesn’t tend to operate with those two parameters at the fore. It’s more of a journey and it’s considerably more about influencing outcomes and relationships than purely about logic and complex transactions.” ALB Australasian Legal Business ISSUE 9.11
A cu ltu re o f e xc e l l e nc e
feature | disputes >>
Regulators yearning to litigate, corporates learning to negotiate As ASIC and ACCC step up their litigious activity, corporates are learning to take a more conciliatory approach, reports Olivia Collings.
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itigation is one of the most feared words in corporate Australia, yet it is increasingly becoming reality for companies, directors and nonexecutive directors. While class actions and shareholder actions get a lot of the limelight the Australian Government is one of the main initiators of litigation through its two regulatory bodies; the Australian Securities and Investment Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC). In the past year ASIC has been in court pursuing the directors of companies such as Centro, James Hardie and more recently Fortescue Metals. “ASIC has been strongly focused over the last couple of years on non-insolvency corporate regulation and continuous disclosure issues,” says senior partner at Baker & McKenzie, Mark Chapple. “The evidence makes it clear they have been aggressive and they have generally taken on cases that they would not have in the past.” ASIC received additional powers relating to the regulation of Australia’s domestic licensed financial markets in August last year. The regulation of rules relating to listed companies, including continuous disclosure, was previously held by the Australian Securities Exchange (ASX). “The fact that it has taken over some of those responsibilities from the ASX in relation to these areas has added to its workload and I think it is keen to make its mark in those areas,” adds Chapple. According to Lander & Rogers partner Greg McKenzie ASIC has been more active in the past 12 months as a result of the ongoing fallout from the global financial crisis. “A lot of their
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activity has been around the corporate collapses, particularly the financial collapses,” he says. Gilbert + Tobin partner Colleen Platford says the ongoing volatility in the market is forcing ASIC to be more robust in its actions. “The public is looking to the regulator to take action,” she says. “We have an environment where people have suffered losses and I think as the regulator they are looking to the courts for definitive statements in relation to directors’ duties and disclosure of information.” Chapple agrees that as a result of the losses suffered by investors, ASIC has
Australian Securities and Investment Commission In May this year Gary Medcraft took over the role of chair at ASIC replacing Tony D’Aloisio. A significant number of changes and projects at ASIC were instigated by D’Aloisio, but they are being completed by Medcraft. These include ASIC assuming responsibilities for the real-time supervision of securities and equities markets and new market integrity rules. In the past 12 months ASIC has concluded various criminal prosecutions in cases against individuals at Chartwell Enterprises (in liquidation), Fincorp (in liquidation), Opes Prime Stockbroking (in liquidation), Trio Capital (in liquidation) and Westpoint (in liquidation). Criminal prosecution continues regarding Opes Prime and Sonray (in liquidation). (The prosecution regarding Fincorp is under appeal). It also began civil proceedings over the collapse of Storm Financial (receiver and manager appointed). It instigated actions on behalf of investors against Chartwell Enterprises (in liquidation), Fincorp Properties (in liquidation), Firepower, Hassle Free Shares, Trio Capital or Astarra Capital (in liquidation) and Westpoint (in liquidation). ASIC also instigated actions against directors at the following companies: Centro Properties Group; Fortescue Metals Group and James Hardie.
become more prepared to take people to court rather than giving them a slap on the wrist or consensual suspension. “The line that ASIC has taken with Fortescue – where they are going to the High Court – they obviously think they can win or they think that the point of principle from the High Court is important enough to have in that area of continuous disclosure,” he adds. Fortescue Metals former chief executive Andrew Forrest has been pursued by ASIC for the past six years over allegations that he misled investors. Forrest was recently granted leave by the High Court to appeal a Federal
Australian Competition and Consumer Commission In July this year Rod Sims was appointed chair of the ACCC, replacing Graeme Samuel who had been at the helm for the past eight years. This year also saw the longstanding Trade Practices Act 1974, replaced with the Competition and Consumer Act 2010 (CCA). The CCA gives the ACCC, and its counterpart state and territory fair trading agencies, a range of new tools to respond to breaches of consumer protection and fair trading provisions. The ACCC now has the power to obtain redress on behalf of consumers, and issue infringement and public warning notices. Since these new powers came into force in April 2010, the ACCC has issued 56 infringement notices and received infringement notice penalties of almost A$300,000. More recently Sims has signalled to the market that the ACCC will actively pursue cases regarding the misuse of market power and unconscionable conduct. He also identified the misuse of market power for an anti-competitive purpose under section 46 of the act as an area which the ACCC intends to clarify. In the past year the ACCC successfully won cases against Japan Airlines International and Asia Pulp & Paper Co for cartel activity. Australasian Legal Business ISSUE 9.11
feature | Disputes >>
“I think it’s an indication that we can expect to see a significant increase in the amount of litigation the ACCC is undertaking.” Greg McKenzie
Lander & Rogers
Court ruling that Fortescue misled the market in 2004 about ‘’binding’’ deals with three Chinese firms. In May this year ASIC also appointed a new chairman, Greg Medcraft, replacing Tony D’Aloisio. Since his appointment Medcraft has made it no secret that he intends to hold boards and directors to account. For instance, in the Centro case, Medcraft has said publicly that ASIC acted where it believed directors’ behaviour did not meet the expectations of the law. Chapple says Medcraft’s appointment and stance on directors’ responsibilities could spell additional activity by ASIC in pursuing those who breached their obligations in ASIC’s view. “Where he [Medcraft] decides to allocate resources will dictate where work is,” says Chapple. As a regulator ASIC has the power to not only pursue individuals and companies in court but also to conduct regular investigations and inquiries, which makes it difficult to know when litigation may be on the cards, says Platford. “You don’t know where that is going to end,” she states. “Both ASIC and the ACCC have the power to conduct interviews www.legalbusinessonline.com
Greg McKenzie, Lander & Rogers
and force attendance and submit information. You don’t know if it is part of an investigation or will it result in proceedings. That is unimaginably stressful.”
ACCC announces new direction
Similar to ASIC, the ACCC has also ramped up its activity against Australian corporates in the past five years and has a new chairman as well as new legislation to enforce. “There has been increased activity in cases bought by the ACCC during the past five years and the activity in the competition and consumer law space is more wide spread,” says Gilbert + Tobin partner Andrew Floro. On 1 January this year the Competition and Consumer Act 2010 was introduced, replacing the Trade Practices Act 1974. The Competition and Consumer Act streamlines a range of existing national, State and Territory trade practices and fair trading laws. The new act also includes a number of new consumer guarantees, identifies and regulates specific types of business practices (e.g. unsolicited consumer agreements, lay-by agreements) and introduces new provisions in relation to product safety
and regulation of unfair consumer contract terms. However, as with all new regulation it will take some time for these new laws to flow through to court action, according to Baker & McKenzie partner Georgina Foster. “A lot of what the ACCC is doing at present is work to help the businesses comply with the new laws, but down the track I think we will see more cases around breaches of the new act coming through. We have already seen the first case in relation to unfair contract laws launched,” she says. Under the leadership of Graeme Samuel AC the ACCC had what has regularly been described as a “cautious approach” to litigation and as a result the ACCC had a very high success rate in wining cases it sought to pursue. According to McKenzie and other legal commentators the new chairman of the ACCC, Rod Sims, has indicated that where there are gaps in the legislation and points of law untested, the ACCC will seek to clarify those through the judicial system. “I think it’s an indication that we can expect to see a significant increase in the amount of litigation the ACCC is undertaking,” says McKenzie. Platford agrees, adding that if Sims remains true to his words the ACCC 27
feature | disputes >>
Andrew Floro, Gilbert + Tobin
“Both ASIC and the ACCC have the power to conduct interviews and force attendance and submit information. You don’t know if it is part of an investigation or will it result in proceedings. That is unimaginably stressful.” Colleen Platford
Gilbert + Tobin
28
Colleen Platford, Gilbert + Tobin
will now pursue cases to clarify the law, not just to win. “And if that’s the case we would expect to see an increase in cases,” she says. Floro adds that this change in strategy is likely to not only affect the volume of cases the ACCC initiates but also the willingness of it to settle a case. “He has also indicated that there is greater interest in the online retailing area and electricity market,” says Floro. Foster senses there will be more ACCC action in the future as a result of the cartel conduct reforms. “We see a fairly steady stream of ACCC work on the enforcement side, but I expect to see more activity in the future,” she says. “Cartel matters have been a priority for the ACCC, but the approach to cartel investigations has changed as a result of the addition of criminal prohibitions.” The ACCC could also be more active in enforcing competition laws when the pending carbon price scheme begins on July 1, 2012. “The government has also flagged that provided the carbon price scheme goes through, the ACCC will have additional responsibilities in relation to that,” says Foster.
When advising clients involved in an ACCC dispute or investigation, Floro says one of the biggest issues is establishing a cooperative working relationship with the regulator. “Establishing that relationship while seeking to pursue your legal position before the court is often a challenge,” Chapple adds.
Alternatives to court
While the ACCC and ASIC are steering towards the courts for judicial certainty, many corporates involved in disputes are steering away from the courts. In recent years the use of Alternative Dispute Resolution (ADR) has increased as a result of not only more awareness of ADR, but also legislative requirements. “We are seeing a renewed interest in ADR,” states Platford. “We are observing people having a genuine desire to at least explore ADR because if you can resolve disputes you get certainty and you don’t have the cost and distraction for management which necessarily occurs when you are involved in litigation.” One of the most popular forms of ADR is mediation, which involves parties Australasian Legal Business ISSUE 9.11
feature | disputes >>
Karen Ingram, Clayton Utz
coming together to resolve a dispute without an adjudicator. “Mediation is the key form of ADR which allows parties to control the process of resolving disputes,” says Clayton Utz partner Karen Ingram. While a mediator is present, their role is to facilitate a resolution, not resolve it themselves. This allows the resolution of a dispute to be more creative. Chapple and Inrgam agree that mediation in particular is almost universal in disputes. “All the cases I have had in the past year have had mediation first, but there are certain cases where you can’t mediate successfully,” he says. The contractual requirement for ADR to be undertaken is also contributing to its increased use. “If parties have to undertake ADR in a compulsory way early on – it’s not then perceived as a weakness by either side, because they have to do it,” says Platford. “We think it’s a really important mechanism for that reason.” However, while contracts ensure ADR is undertaken before court action can begin, the method or type 30
of ADR prescribed can sometimes be unsuitable for the dispute at hand. “When the contracts are written there is no way of knowing what dispute will arise and what the best way of dealing with a dispute may be,” says Floro. As a result of this, parties will sometimes deviate from the strict terms of the dispute resolution clause so that they can find something that works for that particular situation. In August this year the Australian Government introduced The Civil Dispute Resolution Act, requiring parties to undergo ADR prior to commencement of litigation in the Federal Court or the Federal Magistrates Court. But lawyers are sceptical of how much of an impact
the new legislation will have on the undertaking of ADR, which they already see being widely used either out of choice or contractual obligations. “I’m advising clients of the requirement, that there has to be some genuine steps taken to resolve or narrow issues in dispute, before they can commence proceedings in those courts. But by and large I find that there is not a huge impact on my day-to-day practice because of those laws,” says Ingram. Similarly, Chapple also doesn’t see it having a significant impact. “I don’t think it will make much of a difference and I can’t see it leading to a dramatic upsurge in the amount of ADR being undertaken,” he says. Ingram says the main impact of the new law will occur only if parties fail to comply “It will be interesting to see what will happen if parties don’t take these steps and how far the court will go,” she says. “The legislation says the penalty can be cost orders against a party, or a lawyer who fails to advise of the need to take genuine steps, or the court has the power to make certain directions in respect of the conduct of the proceedings. It’s definitely a wait and see area.” One of the less favoured, but readily used forms of ADR is arbitration which has developed a reputation for being expensive and lengthy. “We tend to find that when contracts are being drafted it’s generally compulsory arbitration that is specified,” says Platford. “Many contracts will also include a clause that if mediation is unsuccessful then arbitration is the favoured forum for resolving the dispute.” Arbitration resembles court room litigation complete with evidence, an adjudicator and witnesses. “When you are conducting arbitration, people want to get the matter heard quickly and have a judgement quickly, so people have certainty. But it still has significant costs associated with it,”
“Mediation is the key form of ADR which allows parties to control the process of resolving disputes.” Karen Ingram
Clayton Utz Australasian Legal Business ISSUE 9.11
k o o B l a e p p A 1 3 Volumes 10 Copies Filed & Served s m e l b o r P o N can be Appeal Book Preparing an ourt ocess. Each C a daunting pr m quirements fro has different re of at, methods indexing, form es neral procedur ge pagination to one s is M . followed that need to be d an ts en requirem of the rules or l ea pp A ed a reject run the risk of valuable time. Book, wasting legal k staff has the Our Appeal Boo e to nc rie pe ars of ex k expertise and ye oo B l ea pp A ugh the guide you thro en es t lowing you to pr process thus al onally. si ctly and profes your book corre n on preparatio We can advise prepare lift documents, procedures, up in the ok bo compile the the index and mplete co re su at. To en appropriate form with a Draft e present you satisfaction, w int & bind. ior to the final pr for approval pr for a no and quote ALB y da to us l al C ing your ussion regard obligation disc . requirements
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feature | disputes >>
Doug Jones, Clayton Utz
explains Platford. However, one of the main advantages of arbitration is that parties can choose an arbitrator who is more technically experienced in the area of the dispute, as opposed to a legally-focused judge. Although, according to Chapple, this factor contributes to it being more expensive than court litigation as the parties have to pay for that arbitrator, which can cost more than for a judge. “Parties also have to pay for venues which can cost more than courts,” he adds. The other advantage of arbitration is that it is more private than court room action and this often appeals to corporates, says Chapple. “There are some industries where arbitration is more commonplace as a form of dispute resolution. Technical industries such as construction, mining and engineering in particular use it regularly,” he says. Where arbitration has become 32
particularly commonplace is in the international dispute sphere. “Speaking generally, international arbitration provides you with the ability to easily get your award recognised in multiple jurisdictions and an improved ability to collect on those awards,” says Mount Gibson Iron Ore company secretary and general counsel David Berg. In August last year Australia launched its own international disputes centre in Sydney, through a joint venture between the NSW state government and the Australian Centre for International Commercial Arbitration (ACICA). Since then the centre has had about 80 cases take place according to Doug Jones, president of ACICA and the Chartered Institute of Arbitrators and a partner at Clayton Utz. A majority of the cases heard at the Sydney centre involve parties from outside Australia, but
will often have Australian arbitrators and Australian lawyers involved. More recently Jones has been involved in a number of cases for Australian clients, which have taken place in Singapore and Dubai. “I see a lot of disputes in our region arising out of infrastructure developments and construction,” says Jones. “In the insurance and reinsurance space there is also a reasonable amount of arbitration occurring there, as a result of the many natural disasters which have caused those companies to make substantial payouts.” On a global scale Jones says there has been a slight drop in the number of cases underway, which he puts down to the GFC having worked its way through the system. “The spike in numbers that occurred as a result of that is dropping,” he says. However, he adds that the volume of disputes relating to commodities is on the rise as a result of current economic conditions globally. Unsurprisingly with an increasingly global marketplace the number of international disputes is also likely to pick up when economic activity returns. As with other forms of ADR, Jones says the ongoing challenge for international arbitration is the costs and the suitability of the procedure used to solve a dispute. “There has been continuing debate in the international arbitration space about the cost of arbitration,” says Jones. At a conference held in London recently it was revealed that London was cheaper for arbitration than some other locations in Europe, despite the high cost of rent and accommodation there. According to Jones this has sparked renewed interest in finding ways to make the arbitration more economical and efficient. However, finding a process that suits the particular dispute is the biggest challenge facing international arbitration, says Jones. “If you go to court in any jurisdiction you will have a set of rules to follow. But what arbitration provides is the capacity to tailor the procedure to suit the particular dispute. Arbitrators need to avoid adopting standard procedures and find ways to devise a process for the case which suits the dispute,” he adds. ALB Australasian Legal Business ISSUE 9.11
feature | litigation >>
Why “no comment” is no answer:
The case for litigation PR
Lawyers need to take note of the intimate link between dispute resolution and public relations, argue Alice Cope and David Van.
R
eputation is the most significant asset clients have. When advising clients in relation to disputes or potential disputes, lawyers should consider bringing a public relations adviser experienced in litigation communications into the strategic team to devise a communications strategy that supports the legal priorities as well as delivering the best long term reputational outcome for the client.
Introduction
Legal disputes rarely fail to attract media attention as there is no doubt that the media loves conflict and drama and litigation provides both. As a result, disputes pose a considerable threat to a client’s reputation. Ambit claims can attach themselves to a company’s reputation regardless of their longevity in court. In today’s environment of intense media scrutiny, companies and individuals are finding that even if they win in the court of law, they can lose considerably in the court of public opinion. Further, any such negative effects are exacerbated by the explosion of social media, which has provided individuals, NGO’s and activists with a platform to voice their opinions in front of a global audience. Whatever a client’s dispute resolution goal is – resounding victory, settlement or, if caught early enough, the avoidance of a conflict situation developing into litigation – the involvement of a corporate communications practitioner experienced in ‘Litigation PR’ can make
a significant difference in managing the conflict and its reputational effects.
What is litigation PR
In short, litigation PR combines two fundamental aspects of corporate communication practice: crisis management and reputation management. A pioneer in the field, James Haggerty, explains that in the U.S. litigation PR involves “managing the communications process during the course of any legal dispute or adjudicatory proceeding so as to affect the outcome or its impact on the client’s overall reputation”.1
So what does litigation PR involve? Public opinion is often formed in the
early days of a dispute or lawsuit, and that opinion usually sides with whomever manages the perception of it the best. While the ability to set the agenda usually sits with the initiator of the action, effective and strategic PR can reverse this natural position, and use the platform that the media interest creates as an opportunity to enhance reputation. A key role that a Litigation PR practitioner has in a dispute is establishing their client’s position and credibility with the media. The PR practitioner will also develop messages and manage information flow. Together, these activities will help to counter negative coverage and ensure that the client’s position on the dispute is
1. James F Haggerty 2003, In the Court of Public Opinion: Winning Your Case with Public Relations, John Wiley & Sons Inc., Hoboken, New Jersey, 2. www.legalbusinessonline.com
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known, ultimately maximising the chances that media coverage of the dispute is at least balanced, if not supportive of the client’s position. Litigation PR also goes beyond media relations, and involves managing the client’s reputation with all of its stakeholders. For example, a company facing a dispute will have a number of stakeholders outside of the dispute or court process, including employees, unions, customers, suppliers, shareholders, regulators and the general public. Each of these stakeholder groups will have a unique view of the issues involved, and the company’s reputation with each group may be affected by the dispute in a different way. A Litigation PR practitioner can assist with identifying the company’s stakeholders, analysing how the dispute may affect the company’s standing with each, and develop a plan to minimise the negative impacts the dispute will have on the company’s various relationships. It is even possible that the application of stakeholder analysis and strategic planning could help identify ways in which a dispute could be resolved, involving as it does a close examination of stakeholder characteristics, perceptions, motivations, strengths and weaknesses. PR’s role in disputes was highlighted in the high profile sexual harassment case brought by Kristy Fraser-Kirk against David Jones and its chief executive Mark McInnes in 2010. Both McInnes and Fraser-Kirk actively used the media to argue their case and promote the image they wished to create.2 Given McInnes’ confession to such unacceptable behaviour, the effective management of his reputation (ie the minimisation of reputational damage as opposed to the absence of damage) allowed him to walk into another top job less than a year after his departure from David Jones. In contrast, some have argued that Fraser-Kirk’s PR strategy did her a disservice. For example, by sharing every detail of the story with the media, it has been suggested that David Jones
was able to settle for a much lower sum than initially anticipated because there was nothing left to ‘hush up’. 3
Why “no comment” is no answer
At the other end of the scale from an over-sharing of details with the media is the ‘no comment’ response – and lawyers are often blamed for advising clients to follow this course. However, while this approach may protect your client’s legal position, it can leave them open to an implication of wrongdoing in the minds of the media and other stakeholders, causing reputational damage lasting well beyond resolution of the dispute. If your client makes no comment, then you can be assured that someone else will make one (and it will probably the ‘other side’ of the dispute). This is particularly so in today’s media climate, where organisations and individuals are becoming incredibly media savvy, and public pressure and risk to reputation have become additional weapons in the legal arsenal.
The McBlunder: why you don’t want to lose in the court of public opinion, even if you win in the court of law
It is important for lawyers and their clients to recognise that there may be no benefit in winning in the court of law, if you lose in the court of public opinion. This is particularly the case given the long term impacts that reputational damage can have, and the difficulty of reputation repair. The case most often cited as an example of this maxim is the ‘McLibel’ case. This saga began in 1986 when members of activist group London Greenpeace started distributing leaflets outside McDonald’s restaurants that made a number of claims in relation to McDonald’s products and practices. McDonald’s responded by demanding apologies from the individual members of London Greenpeace. After employing people to secretly infiltrate London Greenpeace to gather intelligence on its members (not a great look when that came out), McDonald’s sued five activists for libel. McDonald’s ceased
its actions against three of the activists who apologised, but pursued the action against the two who refused – postman David Morris and gardener Helen Steel. To cut a very long story short, McDonald’s ultimately won the libel case. But at what cost? First, Morris and Steel succeeded in proving certain of the claims made in the pamphlet, including that McDonald’s exploited children by targeting them with its advertising and that it was “culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce [its] food”.4 Second, instead of shutting down the accusations leveled at it, McDonald’s provided global exposure for Morris and Steel and the claims made in their pamphlet. The David v Goliath nature of the conflict generated huge media interest, and boosted the antiMcDonald’s movement. All in all, McDonald’s made a meal of the case.
Closing arguments
Companies would rarely attempt to tackle a dispute without legal counsel. It is equally important that they consider engaging strategic communications counsel to help protect their most valuable asset – their reputation. With the right practitioners, legal and PR can work together to ensure that the client not only achieves its legal aims but also its reputational objectives, ensuring the best long term result for the client. ALB Alice Cope is Account Executive at
The De Wintern Group and David Van is the Managing Director of The De Wintern Group.
2. Discussed in Moran, S, ‘DJs sexual harassment case has the minders in a spin’, The Australian, 4 October 2010; Verrender, I, ‘Spin doctors preserve boys’ club status quo’, The Sydney Morning Herald, 19 October 2010; Campbell, M, ‘Were Kristy Fraser-Kirk’s PR advisers snoozing on the job?’, Crikey, 21 October 2010. 3. Campbell, M above. 4. See Steel & Anor v McDonalds Corporation & Anor [1999] EWCA Civ 1144.
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Australasian Legal Business ISSUE 9.11
We’re saving the world in 2012....will you join us? LESI Conference to examine the role of commercialising innovation and IP in solving some of the world’s biggest problems. In 2012, the world’s population will have surpassed 7 billion, the Kyoto Protocol will expire and the global licensing world with descend on Auckland New Zealand to explore how innovation might be commercialised to “save the world” from threats such as disease, poverty, food shortages, over-population, and environmental destruction. We’ll be saving the world – will you join us? The Licensing Executives Society International 2012 Annual Conference will be held in Auckland, New Zealand, promising to deliver challenging new insights into the commercialisation of innovation across diverse topics including resources and environment, clean tech, sustainable economic development, university-industry-government collaboration, and health and life sciences. The conference will also address technical subjects, including patent law reforms, licence drafting tips and IP issues in M&A deals. The Conference is open to professionals and entrepreneurs interested in intellectual property and licensing across all industries, including technology, finance, accounting, investment, academia, research and law. The Conference has some exciting speakers secured, including: • Sir Ray Avery GNZM, scientist, inventor and social entrepreneur named New Zealander of the Year in 2010. Sir Ray is founder and CEO of Medicine Mondiale, an award-winning development agency managing a global network of scientific, clinical and business experts who donate their time
to developing medical solutions which make quality healthcare accessible in developing countries. • Francis Gurry, Director General of the World Intellectual Property Organisation. Mr Gurry was instrumental in establishing the WIPO Arbitration and Mediation Centre in 1994 and developing the highly successful Uniform Domain Name Dispute Resolution Policy. Before joining WIPO, Mr Gurry practised as an attorney in Australia and taught law at the University of Melbourne. • Nick Gerritsen, one of New Zealand’s leading business start-up experts and knowledge brokers. Nick is a Principal at CrispStart, a company that commercialises leading New Zealand technology propositions with global potential from the ground up, and has been leading New Zealand’s contribution to the global clean tech revolution, with stakes in Carbonscape and Aquaflow. • Mark Stevenson, author and speaker on future narratives, institutional innovation, engineered serendipity and learning. His book, An Optimist’s Tour of the Future, looks at how promising ideas create an optimistic view of the future, examining how innovation can positively affect climate change, technology and world health. • Ben McNeil is leading a new generation of economic thinkers. With expertise in both climate change and economic strategy he has been called ‘an agent of change’. His book The Clean Industrial Revolution argues that improving environmental sustainability presents exciting new opportunities to generate profit and boost our economy. He is a senior research fellow at the Climate Change Research Centre at the University of New South Wales and also holds a Masters degree in Economics.
Workshop presentations throughout the conference will give delegates the opportunity to hear the latest in the new frontier of innovation, including: • Creating Something from Nothing: Case study on the success of Lanzatech – a global leader in gas fermentation – Sean Simpson, Lanzatech • Cleantech Innovation in China – Ray Tettman, Watermark • Sustainable Manufacturing: The impact of industrial chemicals and plastics from renewable feedstocks – Dianne Glenn, Corelli Consulting, Ann Roberts, Plantic Technologies (polymer research and biodegradable plastics) • What You Need to Know about Licensing, Intellectual Property and Intellectual Assets to Successfully roll out Your Social Enterprise - Christi Mitchell, Highbury • Best Practices in Innovation Management: Deep Industry – Janne Virtapohja, King Abdullah University of Science and Technology • Top Ten Mistakes Commonly Made When Negotiating and/or Drafting a Patent License Agreement – Russell Levine, Kirkland and Ellis LLP Register now for this highly anticipated international conference. Earlybird registration is open until December 16th. Visit www.lesi2012.org to register and to access further programme details. We look forward to welcoming you to Auckland in April 2012. Simon Rowell Conference Convenor, Licensing Executives Society of Australia & New Zealand
www.lesi2012.org // Auckland New Zealand // 1-4 April 2012
feature | Construction >>
Good times ahead for construction lawyers? Having recently experienced increases in both front-end and back-end work, construction lawyers are cautiously optimistic about the year ahead, writes Kathryn Crossley.
A
LB spoke to lawyers around the country about the current state of construction work and their predictions for the year ahead. Lawyers reported that instructions for both front-end and back-end work had risen but, while the market is strong overall, performance varied significantly between sectors and states.
Commercial CBD Development
David Fabian
“There’s just not the money washing around in the market for financiers to lend even on good projects, even on projects which would clearly have been bankable a few years ago.” David Fabian
Lander & Rogers
36
Lawyers say commercial CBD development has been relatively quiet. “You look around the city and there isn’t a lot of other office space developments going on,” says Doug Jones, national head of projects at Clayton Utz. “Obviously the global financial crisis has caused flatness in the market and [developers] have had difficulty convincing their internal approval committees of the viability of projects,” says Andrew Wallis, partner at Mills Oakley. “[Developers] have also had issues arranging the money for the debt side of the development, and that’s slightly a reflection that the banks have … tightened up enormously on pre-commitment levels and so forth.” Although finance costs are now lower and banks are more willing to lend than they were immediately following the GFC, the conditions now imposed make obtaining finance difficult. David Fabian, partner at Lander & Rogers in Sydney, agrees. “Unless a project is absolutely bankable, with an LVR
around 50 or 60 percent, high grade, high quality, it won’t get support. There’s just not the money washing around in the market for financiers to lend even on good projects, even on projects which would clearly have been bankable a few years ago.” Fabian believes a pick up in commercial CBD development will take time: “there is a lot of uncertainty; people aren’t making decisions quickly … Businesses, potential tenants and so on, are not making their decisions as robustly and confidently and so the market is not as strong as it used to be.” According to Wallis, Sydney CBD commercial development has been flat for some time, with many commercial building contractors reporting that they don’t have that pipeline of work. Many contractors are currently focusing on refurbishing and fit-out work, while developers are focusing on opportunities outside of Sydney. “Melbourne has seemingly been and is continuing to be busier than Sydney both in the commercial building space and in the residential development space,” says Wallis, adding, ”the most vibrant area in the last few years seems to have been the Docklands of Melbourne. That’s been quite a busy area and I think that’s continuing.” Looking to 2012, Wallis believes things are beginning to pick up. “In relation to their New South Wales projects I suppose they’re working on positioning themselves and putting Australasian Legal Business ISSUE 9.11
feature | Construction >>
proposals up to funders and investors. It’s like they’re in the starting blocks and they want the gun to go,” he says. “I do get the feeling that developers are feeling more positive about the next twelve months.”
Limited Resources
Unsurprisingly, the lawyers ALB spoke with reported that resources infrastructure work had not only remained strong over the past year, but it had also significantly increased, and is expected to grow further in the year ahead. “There’s a lot of work going on driven by the demand for infrastructure in the iron ore, coal and coal seam gas sectors,” says Sean Henderson, partner at Cooper Grace Ward. Despite the current economic uncertainty, big resources companies and contracting houses are saying they’re investing and they see a lot of activity,
Sean Henderson
particularly driven out of China and India over the next five to 10 years... If they’re right, it simply follows that lawyers, whether in-house lawyers or lawyers in private firms, will be busy doing what we’re doing now for a number of years,” he adds. Although a strong pipeline of work is always welcome, lawyers point out that the booming resources infrastructure market had placed a strain on resources. “It’s leading potentially to an over-heated market. I think the capacity of the Australian construction industry to handle all of the projects that are coming out is going to be stretched,” says Jones. This situation has created competition between the public and private sectors for resources. “We had a period prior to the GFC where it was really difficult to get people both at the managerial and at the tools level for projects, and that was leading to a need to readjust the way in which projects were contracted because of the huge demand for resources,” he says. “I think we’re not back at quite that point but … contractors may [soon] be in a position where the available work exceeds their capacity, therefore there will be a need to find innovative ways of contracting that produce value for money for both government and the private sector in what will be a pretty active market.” According to Henderson, “It will be very interesting to see how the issue of human resources plays out in terms of the impact of government visa and other programs, and whether that actually does help infrastructure businesses... Generally speaking the feeling is there will continue to be difficulties in those areas.” It seems experienced lawyers are also in demand, and according to Fabian,
Andrew Wallis
“In relation to their New South Wales projects I suppose they’re working on positioning themselves and putting proposals up to funders and investors. It’s like they’re in the starting blocks and they want the gun to go.” Andrew Wallis
Mills Oakley.
“Big resources companies and contracting houses are saying they’re investing and they see a lot of activity, particularly driven out of China and India over the next five to ten years... If they’re right, it simply follows that lawyers, whether in-house lawyers or lawyers in private firms, will be busy doing what we’re doing now for a number of years.” Sean Henderson
Cooper Grace Ward www.legalbusinessonline.com
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there’s clearly a shortage of skilled legal resources [in the mining and associated mining infrastructure sectors] in the same way that there’s a shortage of skilled engineering resources. “People who know that market, understand its needs and its idiosyncrasies, are in short supply,” he says.
Government Infrastructure Projects
Compared with the resources infrastructure sector, government projects are relatively quiet. In New South Wales, it seems that the O’Farrell government has now settled in, and large projects such as North West Rail and the new Convention Centre are underway. “There’s more to
come of course but I think that the new government did well to get on with both of those projects,” says Jones. “Things are happening in New South Wales; there is still a potential for them to happen in both Queensland and Victoria but there’s a lull,” Jones observes. “In Victoria the change of government has not yet resulted in decisions by government on projects that were underway at the time of the defeat of the Brumby government.” Henderson says the outlook for Queensland government infrastructure projects is strong, with the work a combination of post-flood reconstruction and new projects. The Queensland Government’s South East Queensland
“Things are happening in New South Wales; there is still a potential for them to happen in both Queensland and Victoria but there’s a lull.” Doug Jones
Clayton Utz
Jackson McDonald lawyers
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jacmac-ALB art.indd 1
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feature | Construction >>
Infrastructure Plan and Program (SEQIPP) is the largest regional infrastructure plan in Australia, with an estimated $134 billion in infrastructure investment to be made through to 2031. “The Queensland government is careful about which projects it progresses as a Public Private Partnership,” says Henderson. Both the Sunshine Coast Hospital and the Gold Coast Rapid Transit will be delivered through PPP, and the Cross River Rail project may also use a PPP model. “The demand for big projects and infrastructure is still there and governments consider carefully the options for the appropriate model for each project.” According to Fabian, financing of such projects poses a challenge. He believes “unlocking the access to financing for PPPs via super funds, and I think that’s going to require a lot of thought and effort by government, to better facilitate fund participation.” Henderson notes that post-flood work in Queensland has produced, some interesting developments in
contracting models – models that are designed to fast-track the work (as the infrastructure is critical) while at the same time making sure the government gets value for money for what it’s doing. “There is some innovation there from some of the lawyers, commercial people and decision makers involved,” he says. While government infrastructure projects are limited in some jurisdictions, competition with resources infrastructure is strong. According to Jones: “There’s a view that government is going to have to do better at establishing predictable pipelines of work or it will not be getting the attention from the construction industry that the private sector is getting.”
Disputes
There’s a significantly higher level of dispute activity going on today than there was say five years ago,” says Fabian. “There has been an increase in the dispute work in some sectors and I’d have to say that it is mainly in the privately-funded public infrastructure space,” adds Jones.
Patrick Mead, partner at Carter Newell, has also noticed an increase in disputes in major infrastructure matters, and says the trend is occurring across multiple jurisdictions. Other areas have not experienced this noticeable rise in disputes. “I wouldn’t say that there has been a substantial increase percentage wise in disputes in the private sector mining area … Nor has there been significant upturn of disputes in the CBD building,” says Jones. According to the lawyers ALB spoke with, there are several key trends in dispute work at the moment. Firstly, dispute resolution boards have continued to generate interest in the non-PPP space. “Dispute boards have been remarkably successful in ensuring the delivery of quite difficult projects without dispute,” says Jones, who is also the president of Dispute Resolution Board Australasia Inc. Jones puts the success of disputes boards down to their role in dispute avoidance, rather than dealing with disputes. “There obviously have not
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Partner Infrastructure T 61 7 3231 2992 E sean.henderson@cgw.com.au
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Partner Property, Planning and Environment T 61 7 3231 2958 E tarnya.fitzgibbon@cgw.com.au
Belinda Winter
Partner Workplace Health and Safety T 61 7 3231 2498 E belinda.winter@cgw.com.au
Corporate and Commercial Corporate Governance and Compliance Dispute Resolution and Litigation Employment and Workplace Relations Energy and Resources Estate Planning Family Law Financial Services Franchising Health and Medical Litigation Infrastructure Insolvency Insurance Intellectual Property Property, Planning and Environment Tax and Superannuation Transport Law
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feature | Construction >>
Patrick Mead
“Where historically a number of very large dollar claims that would normally have been pursued by way of extensively pleaded claims at the Supreme Court or the Federal Court, we’re seeing parties adopt this procedure … as a means of accessing cash at an early stage, and even though that is intended to be an interim determination only, what we’re finding is that oftentimes the effect of that is that the dispute often doesn’t get much further.” Patrick Mead
Carter Newell
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been a huge number, so you can’t say it’s a massive industry trend, but it has contributed to the success of some projects which you would think from past experience had the potential for significant dispute. It is a very positive development.” According to Mead, the registered adjudicators in his construction team have been very busy of late dealing with “an ever-increasing take up of the Building and Construction Industry Act payment provisions.” Mead says the firm has been predominantly acting for parties resisting such claims, but has also advised clients pursuing claims under the legislation in a few instances. “Where historically a number of very large dollar claims that would normally have been pursued by way of extensively pleaded claims at the Supreme Court or the Federal Court, we’re seeing parties adopt this procedure … as a means of accessing cash at an early stage, and even though that is intended to be an interim determination only, what we’re finding is that oftentimes the effect of that is that the dispute often doesn’t get much further,” Mead explains. The most interesting development in disputes from Fabian’s perspective is the increasing focus on relationships. He says clients are looking much more for relationships, continuity and people who will look past the first project to a chain of projects. As a result, “relationship supporting strategies are in demand,” says Fabian, adding that “new strategies, new contractual arrangements, new risk-reward mechanisms in particular, which are designed to enhance the relationship and preserve the relationship, are emerging.” A by-product of this trend, according to Fabian, is a heightened sensitivity to dispute avoidance, as distinct from dispute resolution. “In other words, how do you design your contracts and your relationships in ways which nip disputes in the bud and prevent disputes from emerging, as distinct from solving them once they have emerged? Now people are talking much more about structures and arrangements which are designed to pre-empt the dispute.”
Carbon Tax
Despite the considerable discussion around the Gillard Government’s newly passed carbon tax, construction lawyers believe that overall the new legislation will have a limited impact on the industry. The industry assistance packages available to producers of emissions-intensive construction staples such as concrete and steel will likely reduce the overall impact on project costs. According to Basil Georgiou, partner at Jackson McDonald in Perth, increases in other costs may be on the cards. For example, suppliers of bricks, tiles, plasterboard and insulation, have not been identified as receiving any assistance under the proposed scheme. Although the input of these suppliers into large projects may seem small in comparison to concrete or steel, these suppliers’ prices can be expected to rise and impact costs of some projects. “Even if you look at the major projects, an increase of one percent or sometimes even less than one percent is a huge amount of money,” says Georgiou. “The ACCC will be monitoring two areas: price gouging attributing excessive increases in costs to the effect of the price on carbon legislation, and false claims that you should ‘buy now because the price will go up’.” In terms of the client perspective, Georgiou says, those who have studied [the carbon tax] know more about it, “but most contractors and operators in the industry who are not large organisations haven’t studied it very carefully and it’s a wait and see approach by them … How it impacts on the supply chain, those contractors are waiting to see”. Despite the uncertainty and expected impact on costs, the carbon tax is not expected to have a drastic impact on projects. “I think the projects will still go ahead; I don’t think that the carbon legislation will stop projects which are on the drawing board or which are being considered,” says Georgiou. “There is an attempt on the projects currently on the drawing board to include in the contracts for ‘change of law’ provisions, so that the projects will not be held up but there may be a review on the price of them.” Fabian agrees: “at the end of the day, if it’s properly managed, I don’t know that Australasian Legal Business ISSUE 9.11
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it’s going to be a major issue.” According to Georgiou, the Federal Opposition’s plan to reverse the carbon legislation will take time. “If the Opposition does win the election in 2012, it will take some time for them to get the numbers to reverse [the legislation], so one way or another I believe we will have the current legislation in place for at least two to three years before the Opposition does anything about it, if they do. And it will be interesting to see if they will once they see how it works in the fullness of time.”
The Year Ahead
Basil Georgiou
“I think the projects will still go ahead; I don’t think that the carbon legislation will stop projects which are on the drawing board or which are being considered.” Basil Georgiou
Jackson McDonald
Looking at the next twelve months, Henderson says: “I think it’ll be more of the same in terms of front-end construction. There is a pipeline of work there that will probably continue. As some of the big projects that have been quickly put into the market actually get into the construction phase, there may be a bit of a pipeline, if I can put it that way, of dispute work arising out of those projects. Inevitably when you do something quickly, even if for good reason, difficulties can emerge.” Mead says “despite the current global economic uncertainty, the feeling I’m getting is that there is increased activity in the sector where the forward book of work of a number of major clients that we act for in terms of next year is very strong. If anything, there’s probably more of a question mark over what happens after next year”. While the outlook is largely a
positive one, the year ahead will not be without its challenges. In Jones’ view, the challenge for the private sector will be finding ways to deliver their projects on a value for money basis in a market that is quite heated, “and for government it’s going to be a combination of finding the construction resources to do the projects they need and finding ways to finance those projects while still maintaining credit ratings for government”. Fabian expects several smaller players in the building industry will struggle during the next twelve months. “There’s no doubt that the building industry, as distinct from the engineering industry, is doing it tougher, especially in New South Wales and Victoria. We see that that will mean one or two of the weaker players will fail – we’re seeing that already among the subcontractors, but there’s certainly a risk that it will translate into one or more of the weaker players at the head contractor level,” he says. “In the past two or three years we’ve experienced more problems in that area than historically,” Fabian adds. “Despite that recent experience, I think that the majority of businesses still don’t have response plans in place, contingency plans in place, or control and investigation mechanisms in place to effectively protect themselves against all the potential impacts of a major counterparty insolvency on their business”. ALB
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Middletons opens new doors to Perth’s CBD O
ne firm with firsthand knowledge of the Perth CBD property market is MIddletons, which has recently made the move to new digs at St Martins Tower at St Georges Terrace. The firm has had some setbacks since it entered the market in 2008 but also some strong growth, which is said to be the reason behind the new office. “Our Perth office has exceeded growth expectations year on year,” said managing partner Nick Nichola. “Our move will place us in the heart of Perth among many of our major clients.” Middletons’ Perth office now employs 40 staff in Perth, including seven partners.
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In a further sign that Middletons is expecting clement conditions in more ways than one, the firm has signed up with the Perth 2011 ISAF Sailing World Championships as a gold sponsor and exclusive legal services provider. This is the biggest sailing event to be held in Perth since the 1987 America’s Cup Defence and is of international significance as an Olympic qualifying event for the London 2012 Olympic and Paralympic Games. No doubt the PR and media team at Middletons will be busy with the thesaurus for all manner of shipshape metaphors and idioms as the Championships take hold. It’s all plain sailing from here. Really.
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Feature | interview >>
In-house perspective
John Arthur, group executive counsel and secretariat at The Westpac Group:
Was then, is now, devoted to his customers When starting a legal career many lawyers will feel that the future holds few surprises, but for John Arthur, the road to becoming general counsel of Australia’s second largest banking group has been anything but predictable as Olivia Collings reports
“Work I have done in private practice, in-house, in management, as a nonexecutive director and on board committees all adds to an experience base that you can apply when judgements need to be made.”
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W
hen John Arthur took up the role of group executive counsel and secretariat at The Westpac Group in December 2008 many may have wondered what the ex-general counsel of Lend Lease was doing at a financial services company. The Westpac Group is the second biggest financial provider in the country as a result of the A$12 billion merger with St. George in late 2008. Yet, Arthur didn’t begin his legal career as a banking and finance lawyer. Instead he started as a property and construction lawyer at Freehills, climbing quickly through the ranks to partner as a result of a solid grounding in law and engineering. “I was educated as a lawyer, but I trained as an engineer and that gave me a way of thinking that has stood me in enormously good stead,” he says. His first foray into corporate law was as a result of what he calls a dedication
to client satisfaction. “I have always believed in putting your client at the centre of everything you do,” says Arthur, a motto now very much at the heart of Westpac’s own strategy. For Arthur this meant becoming the inaugural general counsel at Lend Lease, his biggest client at Freehills. After a few years in-house Arthur returned to Freehills but this time as a corporate, finance and IT lawyer. It was during his second stint at Freehills he started acting as an adviser for the Commonwealth Bank and his current boss Gail Kelly. Having embedded himself as a leading financial and corporate advisor Arthur then jumped firms and took up the chairman role at Gilbert + Tobin, but his days in private practice were numbered and he soon joined Investa Property Group as chief executive and managing director. After it went private in 2007 Arthur decided to put up his feet and ponder his next Australasian Legal Business ISSUE 9.11
Photography by Thilo Pulch
Feature | interview >>
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Feature | interview >>
move when his old friend Kelly came knocking at his door. “She is a leader that I immensely respected and had great confidence in,” recalls Arthur. As senior legal counsel for an organisation which has around 11.8 million customers, 550,000 investors and nearly 40,000 staff, a diversified career has been extremely beneficial according to Arthur. “I think broad experience leads to better informed judgements,” he says. “Work I have done in private practice, in-house, in management, as a non-executive director and on board committees all adds to an experience base that you can apply when judgements need to be made.” The greater number of tables you sit at the more sophisticated your views are. According to Arthur: “When you get to senior levels in major corporations many of the decisions you need to make aren’t informed just by technical knowledge, they are informed by a much broader range of considerations, usually involving multiple skills and disciplines.” Having experience across a broad range of commercial issues is particularly important for Arthur whose responsibility at Westpac Group is to be across all material legal issues being handled by the team and any issues potentially impacting the business. “If there is anything affecting the business adversely, then I want to know about it before the chief executive does,” he says. This is in addition to assisting the business move towards its new strategic direction of becoming the most efficient operator it can through the use of IT and improved processes.
Branching out
Part of Arthur’s role is to also oversee, guide and develop his team of more than 150 lawyers. As with many other areas of the business, the legal functions of St. George and Westpac
were combined soon after the merger to create a seamless legal resource. “I have no doubt that the merged legal team is better and stronger than those before, which were both pretty good,” says Arthur. In recent months Arthur and the legal team have undertaken projects across a broad range of areas, including negotiations on service contracts, business opportunities, strategic investment priorities and disputes, but it is the compliance requirements of the banking group that tops his list of priorities. “The complexity of the banking operating environment has increased notably since I started this job and it's only trending in one direction,” says Arthur. Indeed, since Arthur took the reins a great many things have happened in the banking sector. “To be in banking from 2008 to 2011 is to have seen generation’s worth of occurrences in a handful of years: the impact of the global financial crisis, the rise of reregulation and in our case bedding down the biggest merger in Australian financial services history,” he says. Westpac also has a strategic productivity agenda, which cannot be delivered without the very best people doing the job, according to Arthur. “I spend time with my people, because one of the reasons I’m doing this job is to make a difference, and one of the ways I want to make a difference is developing the people who work with me – it’s my responsibility.” Working with people he likes is one of the main reasons Arthur gives for taking on the role, although having a father who was a bank manager and having “banking in his blood” no doubt also helped. “In any senior role the key to sanity is working with people that you like and doing something that you regard as meaningful,” he states. As with other in-house teams external lawyers play an important part of the legal undertakings by The
“To be in banking from 2008 to 2011 is to have seen generation’s worth of occurrences in a handful of years: the impact of the global financial crisis, the rise of reregulation and in our case bedding down the biggest merger in Australian financial services history.” 46
Westpac Group. The group’s panel was reviewed not long after the merger with fewer firms on the combined panel than what was onthere had been on the original two. “Our partner firms enjoy more work from us and we on the other hand have the benefit of keener terms and conditions of engagement including pricing,” explains Arthur. The panel is in place until next year, and although the legal landscape has changed significantly since its establishment in late 2009, Arthur has no plans to make any changes in the foreseeable future. “The arrival of international firms has not had a big impact on us,” states Arthur. “We run a large, sophisticated in-house function which has deep relationships with domestic, international and New Zealand firms. We are used to managing two firms in international work if that is necessary.”
Never big enough
When Westpac and St. George merged, Westpac “leapfrogged” from being one of the smaller big four players to the second biggest bank in Australia, worth an estimated A$618 billion. Along with the two main brands, the group also includes RAMS, BankSA, BT Financial Group, Bank of Melbourne and Asgard. However, its plans for growth don’t stop there. Westpac’s aim is to deepen its relationships with more customers and part of that is through having multiple brands to suit everybody’s multiple needs says Arthur: “I’m a passionate believer that our multi-brand strategy is the right strategy for these times… We’re changing the strategic direction of the bank, from being product based, to being focused on relationships instead.” In addition to growing in Australia, The Westpac Group has also expanded its operations across New Zealand, the Pacific and is increasingly focusing its attentions on Asia. “We have recently opened a branch in Beijing,” says Arthur. “We already have a branch in Shanghai, and I expect our business in China to grow as our customers in turn grow their business in China.” St. George and Westpac in the land of the rising dragon, what could make better banking sense? ALB
Australasian Legal Business ISSUE 9.11
feature | Career Progression >>
Advancing your career Is now a good time to switch firms? What’s the best method of securing a post overseas? Is it really necessary to use a recruiter? Kalianna Dean investigates some of the key questions in managing your legal career.
T
he market for legal professionals has clearly become more fluid in 2011 and there was much movement of lawyers between firms in the first half the year. There has been global economic turmoil since then but, according to recruiters and law firms, this has not yet impacted on the demand for lawyers in Australia.
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Tim Fogarty, a recruitment consultant with Taylor Root, says that he is still seeing roles come through just as frequently as they were in the first half of the year. “Activity will probably slow down as we get to Christmas, [but] that’s for seasonal reasons,” he says. Randstad Legal national manager Paul Cowling
believes that the market is tighter than it was six months ago with a “general undersupply of candidates.” He nominates construction and corporate as particular areas of demand. Law firms seem to agree with these observations. “There’s still corporate activity out there, still commercial activity out there,” says Gilbert + Australasian Legal Business ISSUE 9.11
feature | Career Progression >>
Tobin hiring partner Peter Jones. He notes that all law firms consistently have a need for good lawyers. However, G+T HR consultant Melissa Leslie concedes that the firm has been a “bit more cautious” recently, although recruitment is continuing. Rolf Moses is the director of people and development at Norton Rose. He also believes the market is favouring candidates at the moment, an observation he says can be backed up by a quick look at the website of any major law firm. “From a candidate perspective there’s plenty of work out there,” he says. “We are recruiting actively around infrastructure, energy, finance; [these are] notably areas in which we’ve done a lot of lateral partner appointments.” He says the recruitment continues at the senior associate and associate level once those partners are in place. Interestingly, the “big six” appear to be back in the market for the first time in a while. “A year ago you could identify probably half of the top six law firms that weren’t recruiting. Now they all are,” says Fogarty.
Overseas opportunities
International firms are popular with young Australian law graduates under the impression that this will improve their chances of an overseas secondment – but how true is that assumption? Moses says that the Norton Rose merger has delivered very real benefits for graduates. This year alone the firm has sent 13 graduates to Asian offices in Beijing, Singapore, Hong Kong and Tokyo. “We’ve had three from Hong Kong come to us and rotate back this way www.legalbusinessonline.com
so there’s a lot of that going on, that wasn’t the case a few years ago,” he says. In addition, he emphasises the point that firms with international practices generally know a year in advance which vacancies will arise and where, so lawyers who put their hand up for a space can often be accommodated. The other option for lawyers is to join a top-tier firm whose brand is recognised by overseas firms. “Quality brands recognised in the legal market globally – Freehills, Allens, Mallesons etc – are highly sought after. If you get a large UK firm looking for a strong corporate lawyer and they look at overseas qualified lawyers, they will absolutely be interested,” says Cowling. Mahlab recruitment consultant Lucy Duncan agrees and states that for junior lawyers, academic results may still be relevant for overseas employers. She also notes the importance of developing experience which is “relevant and useful” for international firms. It is not only experience at the “six” which is capable of impressing overseas employers. Jones argues that the G+T brand is well recognised and respected internationally, particularly within China and Asia due to the strong referral and professional relationships the firm has built up in those jurisdictions. He argues that the notion of “leap frogging” from the large top tier firms into the internationals is less relevant. Fogarty is another who believes that there is hope for those outside the “six”. “The key is to come from an organisation in a domestic market that is recognised as premier – for example 49
feature | Career Progression >>
“If you are in a mid-tier firm that is good at what it does but not the best, you are better off moving to a firm that does have an international brand.” Tim Fogarty
Taylor Root
a boutique firm or mid-tier firm perceived as the best in the market [at a particular field],” he says. “If you are in a mid-tier firm that is good at what it does but not the best, you are better off moving to a firm that does have an international brand.”
To use an agent or not to use an agent?
Should a candidate use a recruitment agent or apply directly to a law firm? The answer can depend on what level of seniority a lawyer has reached, according to G+T’s Leslie. “Candidates continue to use agencies at the senior end,” she says. However, she notes that people who know the firm apply directly to a particular partner or straight to HR. For both junior and senior roles, there is a view that job applications made direct to the firm are more common. Norton Rose’s Moses says that the way firms have introduced their own recruitment teams has meant
the need for external recruiters has diminished. “Ten years ago recruiters managed all recruitment in law firms. Most firms didn’t have a sophisticated careers website. That’s really, really shifted. The majority now really are going direct to firms,” he says. The reason for larger firms using their own recruitment teams is to better manage the logistics of opportunities across a whole network of offices. According to Moses, an external recruiter won’t be as well informed on all the opportunities available: “As firms become more international an external recruiter probably can’t help with what’s going on across the whole network of offices. Firms have gotten sophisticated and there’s a lot of information about them available that wasn’t [previously] available,” he says. According to Moses this shift leaves external recruiters best placed to help lawyers in need of career advice, rather than just a range of job opportunities. “I think [whether candidates go
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feature | Career Progression >>
through an agent] has less to do with seniority and more to do with the extent to which a person requires career advice,” he says. Duncan agrees, and emphasises the fact that recruiters are able to help with a broad range of ‘soft’ personal communication skills as well as the different types of working environments at various law firms. “We have a broad range of clients and will therefore be very well placed to speak about types of work and work environment different firms will offer,” she says. In addition, legal recruiters can match candidates with firms when they come across someone with a rare or exceptional skill set that a firm is not consciously seeking out. “Even when there’s not necessarily a live opportunity, if we see someone’s exceptionally strong in a certain area we will pick up the phone. That sort of introduction is difficult to do cold,” adds Cowling. McCullough Robertson is one firm that sees the advantage of having strong partnerships within the recruitment industry. “I think that good recruiters that the firm has partnered with can give a strong insight into the culture of the firm and can advise and help make a decision on similar opportunities,” says the firm’s recruitment manager Claire MacGinley.
Switching practice areas
A lawyer may decide to switch practice areas for any number of reasons. It’s by no means an easy process and one which Duncan suggests is better made in the first two years. A switch is also more likely to be supported by the firm where the value proposition of the lawyer is clearly known. Either way, lawyers need to be prepared to give a good explanation
of why such a change is desirable. “Particularly at senior PQE level after a lot of investment, [the firm] will want to understand where [the lawyer] wants to move and why they want to move, and whether there’s a sustainable position for someone in that area,” says Jones. Contacts outside the firm may also be of value. “If you can point to academic pursuits in the field it can assist in providing academic understanding and through that course you might meet people who can facilitate that transition as well,” adds Fogarty. Making the switch to a completely new area is not the only way lawyers can progress their careers, according to Moses. He suggests lawyers might look at how practice areas are evolving and how to develop and transfer skills and experience from one area to incorporate elements of another practice area. “People’s practices subtly change with the changes within the sector and clients. Looking at, for example, where are clients going? Where are they needed? That tends to happen more at intermediate levels,” he says. A gradual change – first to a more closely aligned practice area, then one further removed – is the recommended method. “Switching tends to be easier to do as a gradual shift,” says Cowling. The most obvious example of a gradual change is where lawyers take on an in-house secondment as a way of testing out their in-house aspirations. Indeed, according to McCullough Robertson’s MacGinley and director of HR Kerin McMahon, the number of lawyers who have a career goal of moving in-house following a secondment has increased dramatically in recent times. “I think it’s important to note how many lawyers have that as a career goal,” adds MacGinley. ALB
“I think that good recruiters that the firm has partnered with can give a strong insight into the culture of the firm and can advise and help make a decision on similar opportunities.” Claire MacGinley
McCullough Robertson www.legalbusinessonline.com
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ALB special report | UK 2011 >>
UK 2011: Bracing for the Big Bang As Europe continues to come to terms with the sovereign debt crisis, UK firms have another distraction: a new round of professional reform which is being billed as industry’s Big Bang. Renu Prasad reports.
W
hen the United Kingdom redesigned its coinage in 2008, some Europeans took it as a sign that the UK would not be adopting the Euro as its currency anytime in the near future. The UK has always had very particular notions of sovereignty – but unfortunately these have not quarantined it from the debt crisis unfolding in Europe. The latest round of IMF forecasts suggest that the UK will have just 1.1 percent growth in 2011, a downgrade from the previous 1.5 percent prediction. The IMF has also said there is a 17 percent chance of the UK falling back into recession. UK law firms, notably candid with their revenue and profitability
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results, have published their results for FY2011. They were, as a whole, steady without being remarkable. Q1 2012 in the UK concluded at the end of July and quarterly firm performance was again steady. A Deloitte analysis found that the largest 100 UK firms collectively showed a 4 percent increase in revenue growth in Q1. However, the study noted that growth was not evenly distributed amongst the 100 and that larger firms with an international reach were faring conspicuously better than their rivals. Fee earner headcount also rose by about 3 percent on average. The markets have been particularly volatile since the end of Q1, so it will be interesting to see how firms perform for the remainder of FY2012.
Magic Circle
FY2011 saw Magic Circle firms record steady revenues and evidence of a clear shift in focus from west to east: inevitably, results from the Asia and Middle East offices of these firms outshone their UK counterparts and more plans for new offices in these two regions were unveiled. Linklaters grew both revenues and PEP by approximately 1 percent, but its Asia revenues were up 10 percent and it has launched a new office in Abu Dhabi. Similarly, Clifford Chance grew revenues by 2 percent but the star performers were the Middle East (17 percent) and Asia (16 percent growth, not including Australia). PEP was up by 8 percent and the firm Australasian Legal Business ISSUE 9.11
ALB special report | UK 2011 >>
►► Are Australians still in demand in the UK? Australian lawyers looking to do a stint in the UK should not be discouraged from applying by the present economic downturn, according to recruiters. Demand does still exist, as evidenced most recently by the recruitment drives of Linklaters and Clifford Chance in Australia and New Zealand for local talent. “It’s important to remember the UK market is a lot larger than the Australian market. There is therefore a broader range of opportunities than in Australia,” says Mahlab recruitment consultant Lucy Duncan. “It depends on the experience on offer. Firms do have hiring needs, but those needs may be in very specific areas; for example banking & finance or competition.” Duncan adds that large regional centres with internationally recognised firms are often overlooked by candidates intent on moving to London. The general consensus among recruiters is that opportunities do exist, but not at an overwhelming level. “Nobody can deny the London market is a tough market,” says Randstad Legal national manager Paul Cowling. “Requirements have probably become slightly more stringent but there is still a flow of work. For example during the GFC there was increased demand for derivatives lawyers. Lawyers with strong corporate, capital markets experience will do well in London; as well as areas that are not jurisdiction specific, such as international transactions. Basically candidates in those areas are able to get on even footing with local candidates in London.”
has a new office in Istanbul and has announced plans for offices in Qatar and Casablanca. Allen & Overy has grown revenues by 7 percent with a steady PEP. Perhaps the most aggressively expansionist firm of the Magic Circle, it has established an office in Jakarta, a Washington DC office focused on regulatory practice and a Casablanca office. UK firms clearly believe that Casablanca is the key to establishing a foothold in Africa – in addition to Clifford Chance and Allen & Overy, Norton Rose has also opened an office there and Bird & Bird and Eversheds have announced alliances with local firms or lawyers. By contrast, Freshfields has been somewhat quieter than its rivals on www.legalbusinessonline.com
the expansion front, although it has been expanding its US litigation capacity. Revenues remained steady in FY2011 but PEP dropped 7 percent. However, according to figures from The Lawyer, Freshfields still boasts a higher PEP than A&O, Clifford Chance and Linklaters, although it continues to trail the fifth member of the Magic Circle, Slaughter & May, by a sizeable margin.
Life outside the Circle
Outside of the Magic Circle, it is interesting to note the number of “top ten” UK law firms which have a somewhat composite feel following mergers. Hogan Lovells, that is only 18 months into its trans-Atlantic merger,
is a case in point while Norton Rose remains a four way union of the UK partnership, Deacons in Australia, Ogilvy R enault/Macleod Dixon in the Americas and Deneys Reitz in South Africa. DLA Piper has always retained a separate partnership for its U.S. operations. The remaining half may be destined for significant change, with the firm reported to be considering a full equitisation of its partnership. Norton Rose in particular is an interesting case. One could be forgiven for thinking that the firm would enter a consolidation phase following the Deneys Reitz and Ogilvy R enault mergers, but October brought the surprise announcement that Canadabased Macleod Dixon will join the 53
ALB special report | UK 2011 >>
group in January 2012. In addition to its Canada base, Macleod also has a presence in Moscow, Almaty, Caracas, Bogotá and Rio de Janeiro. This latest merger will see Norton Rose swell its ranks to more than 2,900 lawyers in 43 offices and take its place in the top five of the largest international legal practices. If exDeacons CEP Don Boyd is correct in his prediction that international practice will consolidate into a series of
global firms, Norton Rose will become a difficult player to ignore. The counter-argument is that the manoeuvres of firms such as Norton Rose and Hogan Lovells represent a rearrangement of the second tier and that the game will begin in earnest once the Magic Circle and top Wall Street firms take the field.
Legal Services Act
ABS, short for Alternative Business
Structure, is a rather innocuous acronym which has nonetheless been described as the Big Bang of the UK legal system. An ABS is defined as a firm where a non-lawyer or another entity either manages the firm or has equity in the firm. Provisions of the Legal Services Act 2007 which came into force in October this year will allow for the licensing of ABS entities. In short, non-lawyers will be allowed to own and invest in law firms. The Act has been dubbed the “Tesco Law” in response to an unfortunate claim by a junior government minister that obtaining legal advice should be “as easy as buying a can of baked beans.” Legal advice at the supermarket may be something of a stretch, but a number of other organisations such as universities, banks and local authorities are examples of more likely ABS candidates. More significantly, law firms will be able to source capital externally and float on the stock market. All of this, while highly controversial in the UK, will seem somewhat familiar to Australians – Australia was in fact the first jurisdiction to allow law firms to list. The UK’s move down this path may help explain the interest shown by ASX-listed Slater & Gordon to launch in that market. At the time of publication, a Leicester-based firm known as Premier Property Lawyers was set to become the first alternative business structure (ABS) in the UK. Meanwhile,
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Australasian Legal Business We never forget whatISSUE you9.11 want
ALB special report | UK 2011 >>
Oxfordshire-based firm Everyman Legal, which markets itself as being “solicitors to the entrepreneur”, has announced that it intends to become the first UK solicitors’ practice to seek a stock market admission. As can be discerned even from the names of these firms, the greater effect of the Act appears at present to be limited to smaller practices. However, the Solicitors Regulation Authority has told Legal Week that it had seen interest from a “wide variety of aspiring applicants” for ABS status, including “companies and law firms of a wide variety of sizes.” Investment bank Espirito Santo has predicted a major consolidation of the commoditised legal services market. In a recent report, the bank noted that nearly 9,000 UK law firms (85 percent of the market) had fewer than five partners and that consolidation in this market segment could result in the formation of five to 10 large scale players which would rival the Magic Circle firms in size.
The big bang?
The real significance of the Legal Services Act could be its impact on the larger end of the market. The Espirito Santo report has made some bold predictions about what we can expect to see: larger firms spinning off some practice areas into bespoke niche ventures and shifting the focus to international expansion; or major corporates outsourcing all or part of their in-house legal teams. These are not completely new ideas, but the argument is that the ABS structure will provide the momentum to bring these concepts to fruition. The ABS structure is also predicted to cause renewed critical appraisal of the partnership concept and in particular the length of time required to gain equity. According to Espirito Santo, these ideas may take hold in the profession whether the more conservative firms embrace the reforms or not. ALB
“ABS, short for Alternative Business Structure, is a rather innocuous acronym which has nonetheless been described as the Big Bang of the UK legal system.”
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feature | technology >>
Textbooks on tablet Tablets and ebooks are the buzz-words for the online era – but are lawyers ready to accept textbooks in electronic form? Olivia Collings investigates.
M
obile devices such as the iPad or the tablet are changing the way work is performed in law firms. Many firms have a “bring-your-own” policy for mobile devices, whereby staff can bring a device of their choice and have it connected to the law firm’s system via Citrix, giving them complete access to their desktop from anywhere. Webb Henderson is one such firm and partner Ara Margossian is one lawyer who is sold on the benefits of tablet technology – particularly on security grounds. “Tablets are a more secure way of working,” he said. “If you leave
58
a hardcopy document somewhere, there is no way of retrieving it or locating it quickly. But if you leave a tablet behind, you can remotely wipe it – also known as bricking it – locate it via its internal GPS and they have the advantage of being password activated.” The compact size of the tablet also makes it an ideal meeting tool. Webb Henderson lawyer Ish Omar is one of a growing group of lawyers who regularly uses the iPad to take notes in meetings or refer to documents. “In some cases, such as in a client meeting or in court, a tablet is more appropriate than a laptop,” said Omar.
Wotton + Kearney has decided to issue all partners and some senior managers at the firm with iPads connected to the firm’s server. “Feedback from the partners so far, particularly about useability and efficiency, is very positive,” said chief operating officer Andrew Price. “The decision to roll out iPads to partners was not difficult – the cost is minimal when compared to the time savings the devices create.”
Electronic reference books
While online resources have become the norm when searching for legal information such as case notes and Australasian Legal Business ISSUE 9.11
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feature | technology >>
legislation, practitioner and academic legal texts have remained the domain of the hardcover, until now. All of the three major legal publishers in Australia have announced the release of such texts in ebook formats as a result of the growth of tablets in the legal community. CCH and LexisNexis Australia have launched various ebook titles which can be used across PC, Mac, Sony Reader, Amazon Kindle, iPad, iPhone and other smart phones, accessible through Adobe Digital Editions. Thomson Reuters Australia (the publisher of this magazine) will make its ebooks available on all those devices with the exception of Amazon Kindle and non-Apple smart phones. Ebooks will be accessible through an application developed by Thomson Reuters called ProView which users can download for free through iTunes. However, while the ability to access what are sometimes very heavy texts through these portable devices seems
60
like a blessing for lawyers and law firms, it is not without drawbacks. One of the main concerns for firms is the licensing of the electronic versions. The licensing currently offered by legal publishers for ebooks is on a single download or a single user model; which does not sit very well with the needs of a law firm library, according to Rani John, partner at Gilbert + Tobin. According to firms, licensing of ebooks would ideally be on a firm-wide basis to allow for multiple users. “That would be closer to replicating the access lawyers have to printed books via the firm’s library, or to online sources,” said John. Clayton Utz national information services manager Maria Thiveos says there are many issues associated with single user licence. “For example, if people leave the firm how do you get it back off their device? How can you track usage?” Individual ebook licences are also cited as being too expensive by Thiveos and John. “I think all the firms would like the option of an enterprise
license which would cover the whole firm,” Thiveos added. Publishers are currently offering firms packages whereby they will receive ebook versions for an extra 25-30 percent of the hard copy value, based on the number of hard copies purchased. However, Thiveos says firms would most likely want more ebooks than hardcopies, as libraries are increasingly getting smaller. The different methods for accessing ebooks is also an issue for firms particularly where they have a bringyour-own policy on tablet devices. “The concept of having an ebook accessible on any device is most appropriate, because if I’m reading it on the Kindle or iPad or Blackberry or laptop, it should not make a difference,” said Norton Rose Director – business information systems Phillip Scorgie. All three publishers have invested heavily in adding functions to ebooks including targeted search, annotations, hyperlinks and highlighting tools. However, whether lawyers and law firms will be able to utilise these is yet to be established. “The usefulness of annotation functions depends on the task involved,” said John. “If I was working with a team and wanted to share my annotations on documents then I might do that electronically, but if I’m reading a document and annotating it for my own reference there’s less need to do that.” Given firms are claiming that they want a whole-firm or multi-user licence for the ebooks, John says functions such as this could cause issues, and are only suited to single user licenses. Lastly, there is the issue of readability. Tablets look and act like a book, but the resolution of a tablet is still very different to a piece of paper. “If I have a very large document to read through I tend to print it out. I’m not sure I would want to read a 200 page document on an iPad,” said John. Price adds that while many lawyers are aware of the availability of ebooks, particularly young lawyers, whether a majority of partners would use ebooks extensively in practice is a case for investigation. “Consideration is being given to just how widely used legal ebooks would be by our partners,” he said. ALB Australasian Legal Business ISSUE 9.11
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Q A FEATURE | Q&A >>
&
This month’s question: Have new technological advances and devices helped or hindered the ability of lawyers to achieve a positive work-life balance? Yes or no?
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Andrew Shute special counsel, Carter Newell With the ever increasing reliance on electronic communications, clients demand a greater degree of responsiveness than five years ago. It seems as though you are often required to be available 24/7. Recent advances in technology, provided they are used in a disciplined manner, can assist lawyers to meet these demands and maintain an appropriate work-life balance. The main benefit technology brings is additional flexibility. Carter Newell has embraced the use of mobile devices, so that we no longer need to be tied to our offices at all hours. We can effectively take our office with us and work while we are on public transport, sitting in a coffee shop, or on the deck at home. From my perspective, the most revolutionary development in technology has been the iPad. Finally I have a device that enables me to work on electronic documents in the same way as paper, but with the numerous additional benefits that portable technology offers. I don’t need archive boxes or trolleys. Instead, I can carry court documents, witness statements, expert reports, and discovery anywhere and in one hand. I have the power to use search terms to quickly find what I want. I can bookmark important pages, and highlight and annotate text. And, with the push of a button, I can quickly share this information with the client or other members of the legal team. Thanks to technology I no longer need to miss a school concert, a dinner party, or a weekend away simply because of work commitments. Now I can do both. Andrew Shute has more than 14 years experience in commercial litigation and alternative dispute resolution, advising a wide variety of public and private sector clients on complex disputes, and strategies for their conduct and resolution. He is chair of the Association of Legal Support Managers, Queensland, a member of the Litigation Rules Section of the Queensland Law Society, and a member of the documents and litigation sub-group of the Supreme Court of Queensland's Better Resolution Group.
Australasian Legal Business ISSUE 9.11
FEATURE | Q&A >>
Geraldine Farrell
Kylie Groves
special counsel, Griffith Hack Lawyers
special counsel, Squire Sanders (AU)
Technology has had both positive and negative effects on our ability to achieve work-life balance. On the one hand, we are now always contactable – the blackberry, iPhone, iPad and other remote access capabilities mean that we are now effectively on call 24/7. But this situation is not unique to lawyers – our clients are also connected, and they expect us to be easily contactable. However, for anyone with a flexible work practice, these technological advances have been a godsend; as an example, it means that we can work in or out of the office and can leave the office early enough for family or other commitments, logging back onto work later as needed. This would not have been possible 10 or 15 years ago. It also means being able to control the endless stream of emails and document reviews – it takes five minutes on a tram back to the office after a meeting to delete all of the emails you don’t need to do anything with and to also know what’s waiting for you when you arrive back at your desk. One thing to avoid is being a slave to email – I’ve turned off all email notifications to avoid interruptions and will simply check emails a couple of times a day. And one final thing I try to remember is whether I need to send an email at all – sometimes picking up the phone and speaking to a client or popping in to a colleague’s office can be just as effective! Geraldine Farrell is a senior intellectual property, commercial and technology lawyer in Griffith Hack’s law group, with a broad range of experience in both litigious and non-litigious matters. She is also a council member of Swinburne University of Technology.
www.legalbusinessonline.com
The advent of the ‘virtual office’ has no doubt made it easier to work away from the PITS (prison in the sky). This has given me greater flexibility around when and how I work – it is now possible to do almost everything that can be done in the PITS while stuck in traffic on the school run, or the ballet run, or the hockey training run. Indeed my 11 year old is so adept at answering my phone in a businesslike manner that many a client has assumed she is my secretary. While this greater flexibility means that work doesn’t necessarily have to be done at work, it also means that you can never escape the reach of work. The telecommunications choice of most lawyers is not called the ‘slaveberry’ in our house without reason. This is compounded when you work for a global firm when most of the world is just getting up as you are attempting to down tools for the day. While those with greater resolve than me may have the capacity to turn the gadgetry off when they are not at work I am always tempted to see if that flashing red light on the ubiquitous device means some great set of new instructions. So in my world, the answer is no. It has just blurred the whole work/home distinction making it much harder to keep the work part out of the rest of my life. Based in Perth, Kylie Groves is a special counsel in the labour and employment group. She has experience in the industrial relations field and is an expert on union rules, including eligibility rules. In her more than 10 years experience she has developed expertise in all aspects of industrial relations, employment, discrimination, and occupational health and safety law.
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MARKET DATA | M&A >> market data | M&A >> In association with
M&A TRANSACTIONS AND STATISTICAL ANALYSIS Top 10 Announced Deals - Australasia (01 October, 2011 - 31 October, 2011) Announcement Date
Target Company
Target/Seller Legal Advisor
Bidder Company
Bidder Legal Advisor
Seller Company
17-Oct-11
Rebel Sport Limited
Advising seller: Freehills
Super Retail Group Limited
Clayton Utz;
Archer Capital Pty Limited
Gowling Lafleur Henderson
Rio Tinto Plc
Deal Value (AUDm) 610
Advising financial advisors (Macquarie Group;Royal Bank of Scotland Group): Mallesons Stephen Jaques
19-Oct-11
Hathor Exploration Limited
11-Oct-11
Stoleczne Przedsiebiorstwo Energetyki Cieplnej SA (85% Stake)
24-Oct-11
Onstream Metering Services Limited
Advising seller: Allen & Overy
01-Oct-11
European Goldfields Limited (9.9% Stake)
Advising seller: Blake, Cassels & Graydon
18-Oct-11
TEC Inc
Cardno Limited
Kirkland & Ellis
07-Oct-11
Neighbourhood Energy
CBD Energy Limited
Allens Arthur Robinson
20-Oct-11
Global Resources Network (70% Stake)
Global Energy Group Inc
07-Oct-11
Lemtronics Sdn Bhd
Paramit Corporation
Lemarne Corporation Limited
20
18-Oct-11
Excelior Pty Ltd
Serco Group Plc
Skilled Group
13
Notes:
482
Dalkia International; Industry Funds Management Pty Ltd
Gide Loyrette Nouel
The Mayor of Warsaw
454
Macquarie Group Limited
National Grid PLC
422
Qatar Holding LLC
Aktor SA; and Dimitrios Koutras (Private investor)
182
48
Redbank Energy Limited
25
21
Based on announced deals, including lapsed and withdrawn bids, from 01 October 2011 to 31 October 2011•Based on geography of either target, bidder or seller company being Australasia•Includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from table include property transactions and restructurings where the ultimate shareholders' interests are not changed•League tables are ranked by volume•Q4 11 * = 1 October 2011 to 31 October 2011
League Table of Legal Advisors to Australasian M&A (Oct 01, 2011 - Oct 31, 2011)
League Table of Financial Advisors to Australasian M&A (Oct 01, 2011 - Oct 31 , 2011)
Deal Count
Rank
1=
Clayton Utz
610
1
1
1=
Freehills
610
1
1=
Mallesons Stephen Jaques
610
4
Allen & Overy
5
Kirkland & Ellis
6
Allens Arthur Robinson
7=
Rank
House
Value (AUDm)
House
Value (AUDm)
Deal Count
Goldman Sachs
610
2=
Bank of America Merrill Lynch
610
2 1
1
2=
Greenhill & Co
610
1
422
1
2=
UBS Investment Bank
610
1
48
1
5
PwC
48
1
25
1
6
Pitt Capital Partners
25
1
Bell Gully
-
1
7
Rippledot Capital
-
1
7=
Minter Ellison
-
1
7=
Schoenherr Rechtsanwaelte
-
1
7=
Simpson Thacher & Bartlett
-
1
7=
Wolf Theiss
-
1
Australasian M&A Activity - Quarterly Trends 200
70,000
180 160
Value (AUDm) Volume
50,000
140 120
40,000
100 30,000
80
20,000
60 40
10,000 0
68
Number of deals
Value (AUDm)
60,000
20 0
Q1 03
Q2 03
Q3 03
Q4 03
Q1 04
Q2 04
Q3 04
Q4 04
Q1 05
Q2 05
Q3 05
Q4 05
Q1 06
Q2 06
Q3 06
Q4 06
Q1 07
Q2 07
Q3 07
Q4 07
Q1 08
Q2 08
Q3 08
Q4 08
Q1 09
Q2 09
Q3 09
Q4 09
Q1 10
Q2 10
Q3 10
Q4 10
Q1 11
Q2 11
Q3 11
Q4 11*
Australasian Legal Business ISSUE 9.11 Australasian Legal Business ISSUE 9.11