Australasian Lawyer issue 2.06

ACROSS THE DITCH NZ’s top firms discuss the challenges ahead in 2016 australasianlawyer.com.au

MORE WITH LESS Insurer’s general counsel shares success of in-house model

Issue 2.6

ROAD AND RAIL Current opportunities for lawyers in transport infrastructure projects

SUE KENCH King & Wood Mallesons’ managing partner in Australia discusses the business sense in striving for greater gender diversity

STRY’S

THE LEGAL INDU

T S I L T O H

W YERS 40 INSPIRING L A ARK MAKING THEIR M Y ON THE INDUSTR

CONNECT WITH US Got a story, suggestion or just want to find out some more information? twitter.com/Aus_Lawyer plus.google.com/+AustralasianlawyerAu facebook.com/AustralasianLawyer

CONTENTS UPFRONT 04 Legal insight

Preparing for a digital, divergent and differentiated future

06 Deals round-up

18 FEATURES

THE HOT LIST

30 COVER STORY

VIEW FROM THE TOP

King & Wood Mallesons Australia managing partner Sue Kench discusses endeavours to ensure greater representation of women at the higher levels of legal practice

PEOPLE

MORE WITH LESS AIG’s general counsel for Australasia Peter Hopkins talks about the company’s successful in-house model

14

Shining the light on 40 lawyers making their mark on the legal industry

10 Appointments 12 News analysis

Could dividing the Federal Court by practice area make the Court a more attractive environment for litigation?

PEOPLE 44 Veteran of Vietnam

Allens partner Bill Magennis shares his passion for working with his team in Asia

34

BUSINESS INTELLIGENCE 54 Corporate wellness

The benefits of a healthy employee for a business’ bottom line

FEATURES

ACROSS THE DITCH

Top-tier NZ firms share their highlights of 2015 and thoughts on what’s ahead next year

48

AUSTRALASIANLAWYER.COM.AU

FEATURES

ROAD AND RAIL

CHECK IT OUT ONLINE

The opportunities created by new transport infrastructure projects

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1

UPFRONT

EDITORIAL

Communication is king

I

t is no secret that the legal profession is undergoing unprecedented change.

With globalisation, new technology and worldwide Hannah Norton changes around attitudes to important issues such as worklife balance and diversity in the workplace, there is disruption in the industry – and there is nothing we can do about it, except embrace it.

Some of these developments are great – like the increased focus on work-life balance and diversity. With the industry having such a high incidence of mental health issues, depression and suicide, it would be nice to see those changes start to have an impact on these negative statistics – something I imagine we will see soon.

Some changes can be scary for firms – such as globalisation and new technology – but, if harnessed, they can become a mighty weapon. Take a look at the global law firms rapidly spreading their tentacles across continents, with the strategy of shape up or ship out.

But there’s one thing that hasn’t changed – something automation or artificial intelligence cannot replicate – and that’s relationships But there’s one thing that hasn’t changed – something automation or artificial intelligence cannot replicate – and that’s relationships.

Good old-fashioned face-to-face (or Skype-to-Skype) contact. Nothing beats it.

We can Facebook or email or WhatsApp to our heart’s content, but at the end of the day, there is no better way to communicate with someone than by chatting to them.

And communication is king when it comes to lawyer-client relations.

There’s no better way to discuss your client’s objectives, and how to go about achieving them, than in a forum where you can see them, hear their tone, and clarify any misunderstandings there and then.

Instead of emailing your most valued clients this week, how about taking some time out to arrange to meet up for coffee?

Hannah Norton, editor

www.australasianlawyer.com.au DECEMBER 2O15 EDITORIAL Editor Hannah Norton Production Editor Roslyn Meredith

CONTRIBUTORS Samantha Woodhill Ben Abbott Christopher Paterson

SALES & MARKETING Sales Manager Paul Ferris Marketing and Communications Manager Lisa Narroway Traffic Coordinator Lou Gonzales

CORPORATE

ART & PRODUCTION

Chief Executive Officer Mike Shipley

Design Manager Daniel Williams

Chief Operating Officer George Walmsley

Designer Kat Vargas Photographer NZL Ben Campbell Photography

Managing Director Justin Kennedy Chief Information Officer Colin Chan Human Resources Manager Julia Bookallil

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Australasian Lawyer is part of an international family of B2B publications and websites for the legal industry AUSTRALASIAN LAWYER hannah.norton@keymedia.co.nz T +64 9 889 0124 samantha.woodhill@keymedia.com.au T +61 2 8437 4704

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UPFRONT

THE EVOLVING LANDSCAPE

A DIVERGENT FUTURE

A new Australasian study offers insights on how law firms are preparing for a digital, divergent and differentiated future THE GLOBAL legal industry is undergoing significant disruption and irreversible transformation, driven by a competitive market, customer demands, rapid advancement in technology, and changes to the way people work and live.

The ALPMA/LexisNexis Preparing Australasian Law Firms for A Digital, Divergent, Differentiated Future research looks at the strategies that firms in Australia

147

81%

number of law firms in the study

of respondents based in Australia

HOW PREPARED IS YOUR FIRM FOR A DIGITAL, DIVERGENT AND DIFFERENTIATED FUTURE?

2% Fully prepared

12%

Unprepared

54% Beginning to prepare

and New Zealand are adopting to respond to this changing legal landscape.

“Firms are facing real challenges in addressing internal factors such as operational efficiency and technological improvements,” said ALPMA president Andrew Barnes.

“Externally, the rapidly changing environment presents a challenge for law firms to differentiate themselves and win new business.”

19%

of respondents based in NZ

Well prepared

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Respondents were asked to rank the top five challenges they needed to address to prepare their firm for success in the future. The top five challenges for firms across Australasia included finding new customers/ winning new business, improving operational efficiency, ensuring firms were up to date with technology changes, differentiating from other firms, and growing firm profits.

88

said finding new customers and winning new business was biggest challenge

LAW FIRMS’ PRICING STRATEGIES Respondents were asked what their firms’ plans were for pricing of services in the next three years, and chose answers from a multichoice list. Forty-three per cent said they would continue with their current pricing model.

43%

Continue with current model

45%

Offer more services on fixed-fee basis

23%

Offer more services on value price basis Offer more services on a capped-fee basis

29%

CHALLENGES FACING AUSTRALASIAN LAW FIRMS

Offer more services on a risk-sharing fee basis Offer more services on an hourly fee basis

12% 7% 5%

Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Australian challenges

New Zealand challenges

Finding new customers/winning new business

Differentiating from other firms

Improving operational efficiency

Ensuring firm keeps ahead of tech changes

Ensuring firm keeps ahead of tech changes

Finding new customers/winning new business

Differentiating from other firms

Attracting quality personnel

Attracting quality personnel

Growing firm profits

Growing firm profits

Commoditisation of legal services

Commoditisation of legal services

Succession planning as partners retire

Meeting customer demand for better value

Developing next generation of leaders

Retaining existing customers

Improving operational efficiency

Succession planning as partners retire

Meeting customer demand for better value

Developing next generation of leaders

Retaining talent

Having right info for decision-making

Internal cultural change

Retaining talent

Retaining existing customers

Internal cultural change

Having right info for decision-making

Workforce planning

Workforce planning

FIRMS’ PLANS AROUND CLIENTS AND TARGET MARKETS

54%

60 50

More than half of firms indicated they weren’t planning on changing their leadership structure in the next three years.

44%

40 30

IS YOUR FIRM MOVING TO A CORPORATE-STYLE LEADERSHIP TEAM?

25%

32%

13% Yes

60% No

20 10 0

1% Continue to Increase the Expand beyond address the same number of target current geographic target market/s markets addressed footprint

Keep the same geographic footprint

Reduce geographic footprint

27% Already exists

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5

UPFRONT

TRANSACTIONS

DEALS ROUND-UP ,

$2.3bn

Link Group IPO and listing on the ASX Successfully listing on October 27, the Link Group IPO was the largest IPO of the year in Australia.

Leading the transaction was DLA’s head of private equity, Grant Koch, who joined the firm in April this year.

Link Group is a provider of technology-enabled administration solutions and has approximately 4,300 employees across 11 countries, supporting large superannuation funds. Koch has been working at Link for a number of years, advising on more than 30 acquisitions, investments and disposals.

He said the ASX listing showed strong market confidence.

“We’re delighted to have advised Link Group on what is the signature ECM transaction of 2015 in the Australian market,” Koch said.

DLA Piper’s finance partner, Onno Bakker, advised Link Group on its $580m IPO-related refinancing.

Allens and Allen & Overy also acted on the deal.

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Transaction

Value (A$)

Adviser

Client

Lead lawyer(s)

Additional firms involved

Acquisition of all shares in Aquarius for a cash consideration of $0.275 for each Aquarius share by means of a Bermudan amalgamation

Approx. $414.5m

Allen & Overy

Aquarius Platinum Limited

Meredith Campion, Jessica O’Hara, James Nicholls

Conyers Dill & Pearman, Linklaters

IPO and listing on ASX as a listed investment company

Up to $58m

Ashurst

8IP Emerging Companies

Stephen Menzies

Eight investment partners, Taylor Collison, Bell Potter, Shaw and Partners, Moore Stephens Sydney

Link Group IPO and listing on ASX

$2.3bn

DLA Piper

Link Group

Grant Koch

Allens, Allen & Overy

Sale of Esanda dealer finance business

Approx. $8.2bn

Ashurst

ANZ

Elspeth Arnold, Tiffany Barton

Deutsche Bank, Clayton Utz

Baby Bunting IPO and ASX listing

Approx. $52m

Ashurst

Baby Bunting Group

Corey Lewis, Elspeth Arnold

Morgan Stanley, Deloitte

Cardinal Health's acquisition of Cordis

Confidential

Buddle Findlay

Cardinal Health David Thomson Andy Martin

Summerset acquisition of Parson's Paddock

Confidential

Buddle Findlay

Summerset Holdings Limited

Charlotte von Dadelszen, Ed McGimpsey

Sale of 171 Featherston Street

NZ$76m

Buddle Findlay

Precinct Properties

Charlotte von Dadelszen, Ed McGimpsey

Chapman Tripp (Mark Nicholson/ Tom McGarry)

MAKE SURE YOUR FIRM’S WORK IS RECOGNISED To ensure your firm and its lawyers get the recognition they deserve for their fantastic work, send all your deal details to samantha.woodhill@keymedia.com.au

Transaction

Itoham's increased stake in ANZCO Foods

Value (A$)

$40m

Adviser

Client

Lead lawyer(s)

Buddle Findlay

Itoham

David Thomson Andy Martin

Additional firms involved

ANZCO Foods advised by Crengle Shreves and Ratner

Purchase of the Esanda dealer finance portfolio from ANZ

Approx. $8.2bn

Clayton Utz

Macquarie Group

Kate Jordan, Rory Moriarty

King & Wood Mallesons

Purchase of the Esanda dealer finance portfolio from ANZ

Approx. $8.2bn

King & Wood Mallesons

Macquarie Group

Evie Bruce, David Eliakim

Clayton Utz

Beach Energy merger with Drillsearch Energy

$1.2bn

Minter Ellison

Beach Energy

Ron Forster

Ashurst

Drillsearch Energy

Bill Koeck

Kain C+C Lawyers

SeaLink Travel Group

James Burchnall

Acquisition of Transit Systems Marine

$125m

Sale of an 83% interest $1.67bn in Swisse Wellness to Hong Kong Stock Exchange-listed Biostime International Holdings Ltd

Herbert Smith Swisse Freehills Wellness

Raji Azzam, Kam Jamshidi

Acquisition of a 75% stake in the Mercato on Byron Shopping Centre in Byron Bay

$70m

Herbert Smith Wingate Asset Freehills Management

David Sinn

Acquisition of Port Hedland International Airport

$205m

Norton Rose Fulbright

Nigel Deed

AMP Capital, Infrastructure Capital Group

Clayton Utz, Freshfields Bruckhaus Deringer

$1.2bn

Beach Energy merger with Drillsearch Energy Subject to shareholder approval, the merger will mean that Beach Energy will acquire all of the shares in Drillsearch, exchanging each Drillsearch share for 1.25 Beach Energy shares. Drillsearch shareholders will own around 30% of the share capital in the merged group.

As both energy companies have operations focused in the Copper Basin, the combined company will have an expanded portfolio of oil, gas and infrastructure assets. Minter Ellison acted for Beach Energy, the largest onshore oil producer in Australia.

“I think it’s very significant because it’s consolidating two companies that have significant oil and gas assets … it creates the biggest Copper Basin,” said Ron Forster, lead Minter Ellison partner on the deal.

“There could well be other consolidation exercises in the sector.”

The Beach Energy team was advised by Ashurst, lead partner Bill Koeck.

Macquarie Capital, KPMG

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7

UPFRONT

TRANSACTIONS Transaction

$2.4bn

acquisition of MLC by Nippon Life Insurance Ashurst acted for Nippon Life Insurance in its first overseas majority acquisition.

Entering into a definitive agreement to acquire 80% of MLC from National Australia Bank, MLC Limited will become a subsidiary of Nippon Life upon closing. NAB will hold onto its 20% stake in MLC. “Nippon Life’s acquisition of MLC is an exciting milestone for Japanese investment in the Australian financial services sector, and more particularly in life insurance. Like so many successful Japan-Australia investments before it, this transaction is not just a business acquisition but at its bedrock it will establish a long-term partnership that brings together the complementary skills and resources of its partners,” said lead partner Natuko Ogawa.

“Ashurst is proud to have been able to work with Nishimura & Asahi, one of Japan’s leading law firms, to assist Nippon Life with this transaction.”

The deal is subject to consideration by Australian and Japanese regulatory authorities.

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Value (A$)

Adviser

Client

Lead lawyer(s)

Additional firms involved

A solar power project for the Undisclosed Ayers Rock Resort, including all legal due diligence, Engineering Procurement and Construction (EPC) and Design and Construct (D&C) contracts, Operation and Maintenance (O&M) agreements, the solar power systems lease, site leases, and financing documents

HWL Ebsworth Epuron Lawyers

Tony Morgan

Sale of shares in CodeBlue Limited

Up to $15m

Simpson Grierson

Shareholders of CodeBlue Limited

Peter Hinton, Anastasiya Gutorova

Advised natural honey Confidential products company Manuka Health New Zealand and its major shareholders on its sale to Australian private equity firm Pacific Equity Partners

Chapman Tripp

Manuka Health New Zealand

John Strowger

Acted for Auckland-based private education group Academic Colleges Group and its major shareholders on its sale to Australian private equity firm Pacific Equity Partners

Confidential

Chapman Tripp

Academic Colleges Group

John Strowger

Auckland Prison PPP project Confidential

Anderson Lloyd

Next Step Partners Consortium

David Holden, Geoff Busch

Bell Gully (Department of Corrections), Corrs (Fletchers), Minter Ellison Rudd Watts (Westpac)

Acquisition of Waterfront Place and Eagle Street Pier in Brisbane’s CBD

$635m

DibbsBarker

DEXUS

Matthew Rollason

King & Wood Mallesons

Acquisition of MLC by Nippon Life Insurance

$2.4bn

Ashurst

Nippon Life Insurance

Natsuko Ogawa

SBA Law

Firm Profile

CONSTRUCTION CONTRACTS - REFLECTIONS OF A MAJOR IRRIGATION PROJECT - PRACTICAL CONTRACT MECHANISM COMPETITIVE TENSION AND EARLY CONTRACTOR INVOLVEMENT CAN ADD SIGNIFICANT VALUE We recently negotiated and documented the construction contracts for a major irrigation scheme in New Zealand. The contractor procurement process followed a reasonably traditional competitive tender and led on to an early contractor involvement/project optimisation process to ensure that the scheme cost and buildability were fully optimised.

Given the particular project circumstances, two leading tenderers separately entered into project optimisation agreements with the Principal, on the basis that one of them might be invited to enter into a lump sum project for the work (over NZ$100 million).

The optimisation process was interactive and collaborative, but also contained competitive tension between the competing contractors. The tenderers were paid a negotiated sum for their optimisation work, and whilst it was unusual to have two separate optimisation agreements running for the same project, significant project cost savings and efficiencies were identified as part of that process and gave the client the confidence to proceed with the project.

EARLY WARNING AND COLLABORATIVE INTERVENTION CAN BENEFIT BOTH THE CONTRACTOR AND THE PRINCIPAL The project was financed with investor funding and a significant level of debt funding.

Completion on due date was critical to avoid loss of production over an entire pastoral season and consequential loss of investor and financier confidence.

The risk of delay was significant as the project involved the manufacture and

installation in the ground of very large pipes (of a diameter that a person can stand up in) along an alignment in excess of 100km. A number of roads and a large number of private properties needed to be crossed.

Whilst the contract provided significant liquidated damages provision for delay, a major focus of the contract negotiation was to identify and document sensible measures to monitor progress and facilitate/escalate corrective action should the achievement of any milestones become at risk.

Care was taken to identify and agree upon meaningful project milestones. The Contractor understandably wished to keep these to a minimum, whereas the Principal and its financiers required more milestones than initially proposed so as to enable them to gauge the progress of the works and hence the overall “health” of the project.

In addition to fixing milestones, and providing for reasonably frequent contractor progress reports, the parties included in the construction contract an obligation on each to provide an early warning of any issue or concern that may threaten achievement of a milestone by due date. The contract also included a critical mechanism (triggered in circumstances where the project engineer determines that the Contractor has not achieved or is unlikely to achieve a milestone by the relevant milestone date and where the Contractor is not entitled to an extension of time). That mechanism enabled the engineer to require the Contractor to submit a proposal for engineer approval for acceleration of the works to get back on programme. In default the engineer could order specific acceleration measures. The additional cost of acceleration fell to the Contractor.

Part way through the contract a major

subcontractor deployed to manufacture and install the pipes unexpectedly got into financial difficulties and the delivery of the whole project became at risk. The early warning process and the graduated acceleration process enabled the Contractor and Principal to work collaboratively together over a number of weeks in response to the subcontractor’s difficulties. The Contractor was able to step in and progressively take remediation steps and avoid the head contract falling into default. As part of that process the Contractor responded positively to the Principal’s concerns, some intermediate milestones were adjusted, but the critical end date remained intact and delivery on time and within budget was successfully achieved.

The tailoring of contract processes to facilitate early warning and positive intervention delivered a far better result for the Contractor and the Principal than waiting for default to occur and then being drawn into the traditional adversarial contract default process.

This article was written by Stephen Whittington (partner) and Bassam Maghzal (senior associate) of Buddle Findlay. Stephen and Bassam specialise in property, construction and infrastructure.

Stephen Whittington DDI: +64 4 498 7329 stephen.whittington@buddlefindlay.com

Bassam Maghzal DDI: +64 3 353 5884 bassam.maghzal@buddlefindlay.com

www.buddlefindlay.com

UPFRONT

MARKET MOVEMENTS

APPOINTMENTS

Presented by

LATERAL PARTNER APPOINTMENTS NAME

PRACTICE AREA

LEAVING

GOING TO

James Minchinton

Energy and resources

Corrs Chambers Westgarth

Sparke Helmore Lawyers

Aaron van der Heyden

Family law

Septimus Jones & Lee

Tisher Liner FC Law

Alexandra Jelley

Family law

Septimus Jones & Lee

Tisher Liner FC Law

Jason Dixon

Technology and intellectual property

Ash Street

Page Seager

David Palser

Construction and infrastructure

Leighton Asia

Page Seager

Luke Gattuso

Workplace relations

Allens Linklaters

Page Seager

Michael Mitchell

Commercial and insurance law

Curwoods Lawyers

Keypoint Law

Neil Carabine

M&A, regulatory and access

King & Wood Mallesons Melbourne

King & Wood Mallesons Hong Kong

Jeremy Prentice

Corporate

Holding Redlich

K&L Gates

Sarah Harrison

Workplace relations and safety

King & Wood Mallesons

HWL Ebsworth

Brett Solomon

Insurance

DibbsBarker

Norton Rose Fulbright

Damien Butler

Restructuring and insolvency

Norton Rose Fulbright

Colin Biggers & Paisley

Victor Borzillo

Construction and engineering

Strategic Legal and Consulting

Colin Biggers & Paisley

Richard Anderson

Property and development

Minter Ellison

Colin Biggers & Paisley

Harry Kingsley

Corporate and commercial, Transport, Agribusiness, Financial services

Asciano

Holding Redlich

CLAYTON UTZ PROMOTES FIVE TO PARTNERSHIP Clayton Utz recently announced the promotion of five lawyers to the partnership, effective from 1 January 2016.

Lina Fischer has been appointed partner in the Sydney major projects and construction practice. She joined Clayton Utz in 2002 and settled in the major projects and construction team in 2005. She has over 10 years’ experience as a specialist front-end construction and infrastructure projects lawyer, acting for both government and private sector clients.

Cain Sibley has been appointed in the public sector practice of the firm’s Canberra office.

Sibley joined Clayton Utz from a Commonwealth agency in 2011, where he was general counsel.

His expertise is in public law (both advisory and litigation) and his experience working for government supports clients that are navigating difficult legal, political and reputational risks.

Peter Staciwa has been appointed partner in the banking and financial services practice in Sydney. He first joined the Clayton Utz project finance team in 2012.

Lucy Terracall has been appointed partner in the insurance practice of the Melbourne office. She has practised in the insurance team at Clayton Utz since 2007 and has over 10 years’ experience in insurance law and significant experience in insurance regulation and compliance.

Tim Webb has been appointed partner in the IP and technology practice of the Sydney office.

He joined Clayton Utz in 2003 and his practice focuses on complex commercial litigation and dispute resolution, particularly for clients in the technology, media and telecommunications sectors.

Clayton Utz chief executive Partner Rob Cutler says the appointments reflect the firm’s client service focus.

“Our new partners are talented lawyers; client focused and collaborative team players. They know what it takes to deliver exceptional client service.

“They are among our next generation of leaders and I congratulate them on their appointments.”

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SENIOR ASSOCIATE APPOINTMENTS FIRM

LAWYERS PROMOTED OR LATERALLY APPOINTED

Duncan Cotterill

Helen Scott

PARTNER PROMOTIONS FIRM

LAWYERS PROMOTED

Sparke Helmore Lawyers

Belinda Michalk

Heaney & Partners

Frana Divich, Lisa Douglas, Sarah Macky, Shyrelle Mitchell, Kelly Parker, Paul Robertson

Clayton Utz

Lina Fischer, Cain Sibley, Peter Staciwa, Lucy Terracall, Tim Webb

OTHER NAME

FIRM/COMPANY

TITLE

Ian Cox

Herbert Smith Freehills

Justin D'Agostino

Herbert Smith Freehills

Sue Gilchrist

Herbert Smith Freehills

Geoff McClellan

Herbert Smith Freehills

Regional managing partner EMEA, UK and US Joint regional managing partner Asia and Australia Joint regional managing partner Asia and Australia Managing partner clients and sectors Managing partner strategic implementation

Stephen Mihaljevic Nexus Law Group

Consulting principal

James Morris

Norton Rose Fulbright

Special counsel

Anil Sharma

Lexvoco

Senior legal counsel

Diana Gould

Lexvoco

Senior legal counsel

Patrick St John

Herbert Smith Freehills

Scott Cochrane

Herbert Smith Freehills

Kate Chinnery

Minter Ellison

Special counsel

Jason Ricketts

Herbert Smith Freehills

Global head of practice corporate Global head of practice finance, real estate and projects

Gladys Chew

AdventBalance

Client solutions manager

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11

UPFRONT

NEWS ANALYSIS

AUSSIE: A LITIGATION HAVEN? The concept of having specialist judges is something that could make Australia a more attractive place for IP litigation and litigation in general, a partner of a global law firm tells Hannah Norton

IT IS no secret that differing areas of law can be like chalk and cheese. So it makes sense that cases in the differing practices of law should be treated differently.

In a bid to reinvigorate case management, the Federal Court will be divided into eight key practice areas as part of the roll-out of the national court framework.

of the importance for the Federal Court to be competitive and relevant in our AsiaPacific region, particularly given there’s a lot of arbitrations happening in Asia, and a lot of alternative tribunals – and that is likely to continue to be the case.”

The Chief Justice’s message is that when lawyers are acting on a case, it is up to them

“We need to be considering how [the Federal Court] operates in our Asia-Pacific region” Sue Gilchrist, partner, HERBERT SMITH FREEHILLS The practice areas include administrative, human rights and constitutional; native title; commercial; intellectual property; tax; admiralty and maritime; industrial relations and labour; and criminal cartel trials.

Herbert Smith Freehills IP partner Sue Gilchrist believes the move could make Australia a more attractive forum for litigation.

“The Chief Justice of the Federal Court [James Allsop] announced early this year that he is looking at reforms to more clearly reflect the national nature of the court and to have more clearly identified specialist judges, including IP specialist judges,” Gilchrist tells Australasian Lawyer.

“When he did that, he put it in the context

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as practitioners to take responsibility and come to the court with sensible propositions for how a particular piece of litigation can be progressed as quickly and efficiently as possible, Gilchrist says.

This means it’s useful to have specialist practitioners for the different specialist areas.

“It’s not good enough to say, oh well, this is how the court runs these things, so you just start the litigation and let it run; you need to really think about it and talk to the other side – see if you can work out something by agreement, and then come up with a proposal to the court.

“If the parties can’t agree, the lawyers should be proactive about engaging with the judge to progress the case fairly and

efficiently. It is good to know the Court will be receptive to this approach.”

She believes it signals a welcome approach to streamlining IP litigation in the Federal Court, which will potentially help make Australia a more attractive forum for litigating and resolving IP disputes.

“The Chief Justice has very much placed the proposed reforms to practice and procedure in the Federal Court in an international context. We need to be considering how this Court operates in our Asia-Pacific region.

“I think right now the Court has several significant cases in the early stages, in which the Court, and practitioners, can seek to demonstrate whether they can take an efficient and proactive approach to progressing those cases well and costeffectively.”

A global approach is important for law firms these days, Gilchrist says.

“A lot of the major cases here are for international clients. And the parties to those cases have got to make a decision – particularly where it’s multijurisdictional litigation – whether they run the case in Australia or not.”

She says a major factor in making that decision is: “What is the procedure here?

How does it compare to the US or the UK or Europe or Asia?”

There are a few things about the

Australian jurisdiction which make it attractive.

“For example, the fact that in an IP case you can start off proceedings seeking an urgent interlocutory injunction – that’s pretty attractive to a lot of IP owners,” Gilchrist says.

“It’s an assertive and effective way to send your message of protecting your IP rights to the other party.”

This global approach means litigators need to know about court procedure in other jurisdictions to be able to communicate with clients who are more familiar with other jurisdictions, she says.

“For example, a key matter at the moment is multijurisdictional patent litigation.

“You need to know, if you’re running the litigation here, and for example there’s going to be discovery of documents here, how that is going to impact the other jurisdictions.

And you really need to know, whatever strategic direction you’re making here, how is that potentially going to impact in other jurisdictions.

“And I think you also – especially in IP – need to know and be aware of what cases are before the courts at the moment,

even cases just in early interlocutory stages – just to be aware of what the trends are and what approaches the courts are taking on various things. For example, is the court tending to order that evidence be given as concurrent evidence – or ‘hot tubs’?”

These matters of practice and procedure are not set out in detail in any practice notes or rules, Gilchrist says.

“The judges will assume specialist IP practitioners are aware of the trends and options, and will approach the court with a sensible proposal as to how the case will run.”

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13

PROFILE

PETER HOPKINS

More with less AIG’s Australasian general counsel, Peter Hopkins, is doing his best to build legal self-sufficiency in-house, and although he is busy doing more with less, Ben Abbott finds he is also ready to offer his team’s expertise up to benefit a greater cause

FOR A VERY large multinational, AIG’s external legal spend is surprisingly small.

“On the claims side of the business it is in the multiple millions, but for corporate – which is my panel, if you like – my legal spend is minimal,” says Peter Hopkins.

This is strategic. As general counsel of AIG, Peter Hopkins has been focused for the last three years on consolidating a versatile, self-sufficient in-house legal team.

“Our model is really to be self-sufficient,” he explains.

“We have a team of very senior lawyers – as senior if not more senior than me – so that if a legal issue comes into the company then invariably we have the expertise in-house to handle it.”

This is not great news for private practice firms. In fact, Hopkins says with the team as it is now, AIG in Australasia has little reliance on external counsel.

“Occasionally there’s something that one of us can’t handle. I don’t appear in court, for example, so litigation is one, and we don’t have tax expertise in-house.”

However, for in-house observers who are exploring new ways of operating, AIG’s holistic practice is a strong endorsement for moving beyond ‘postbox’ in-house law.

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A one-stop shop AIG’s Australasian legal team – which also oversees Papua New Guinea – has eight staff spread out across offices in Melbourne, Sydney, Perth and New Zealand.

Hopkins, based in Melbourne, says the team is responsible for two legal streams: reinsurance – the insurance of insurers – as well as AIG’s multinational accounts.

and that knows the business well, there is less of a process involved in providing that person with instructions,” Hopkins says.

“We commonly receive instructions by phone or in a meeting, but I think private practice lawyers probably prefer to have something written down. I truly believe we can turn things around faster.”

However, the success of AIG’s in-house model brings its own set of challenges. Like doing more with less.

“Expense pressure is common across the market,” Hopkins says. “Our team is not growing, and the challenge is making sure you are maintaining the standards in terms of getting back to the business quickly so they can go to market with the benefit of the advice or the drafting. Prioritisation is a key issue.”

This is even more difficult when you have cultivated an engaged senior team that Hopkins describes as “operational”, one that gets closely involved in projects.

“I think one of the challenges is how you manage the relationship with the business.

At the end of the day, we are legal – we are not the project team – but when you have a capable team the business does tend to rely

“We have to maintain trust and do the right thing by the business, but we also have to draw a line somewhere” “We have offices all around the world, so what we do is we tend to insure big companies in all those jurisdictions,” Hopkins says.

“That gives rise to a lot of legal questions and challenges, and we handle that across Asia-Pacific ex-Japan.”

Cost is a key driver for pursuing selfsufficiency in-house. But Hopkins says there are other reasons just as important as legal spend – like speed and efficiency.

“If you’ve got someone sitting 20 metres away who is able to turn the work around

on you. We have to maintain that trust and do the right thing by the business, but we have to draw a line somewhere.”

Another challenge is evolving regulation.

Perhaps more than in other sectors, financial services companies like AIG have a range of laws, regulations and regulators to watch, from APRA, to ASIC, and from the Corporations Act to consumer protection regulation.

“The challenge is really keeping up to date with all of those, because we are seeing things move quite fast in terms of lawmaking.”

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PROFILE

PETER HOPKINS

In love with in-house Peter Hopkins has a deep background in insurance law. He began his career at Lander & Rogers, had a stint at Lawrence Graham in London doing reinsurance work, and then returned to work at Deacons (now Norton Rose) in Australia.

However, after eight years in private practice, there were a number of reasons for looking at new opportunities. “With the birth of my son, I figured doing regular nights to 10pm or 11pm in the office wasn’t really going to work,” Hopkins explains.

He was also interested in something different. “Up to that point I’d more or less done insurance claims, with some reinsurance as well, but there was an opportunity here to do commercial work and I figured it was easier to make that transition in-house.

Hopkins says his in-house career has brought variety, including 18 months in a non-legal role as reinsurance officer before becoming GC in December 2012.

“I guess the thing about in-house which private practice doesn’t offer is you are able to branch out and explore the potential for management positions or the potential to work in other disciplines, whether it is compliance or reinsurance or risk.”

Hopkins is interested in practice innovation, and has taken his appreciation of work-life balance further by implementing work-from-home arrangements for his team.

“This is quite new for me. I haven’t exactly been a sceptic, but it was a bit of an unknown.

But I have been doing a little bit recently, and the benefits are amazing.”

This has involved embracing upgrades in technology to ensure lawyers have access to what they need in a home-based environment, while other tech-based innovations have included cutting down on paper by going digital with AIG’s board papers.

Hopkins is also increasingly focused on utilising the team’s combined expertise to provide collaborative approaches to queries – including non-legal solutions – due to the

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FEELING GOOD ABOUT PRO BONO

AIG’s busy in-house legal team already has its fair share of work to do for the business, but GC Peter Hopkins thought the team could do a little more.

That’s why he decided to explore pro bono work. And the benefits are paying off.

“It’s a great way of developing relationships with law firms, developing relationships in-house, broadening expertise across the team, and it’s great for morale.”

Hopkins approached panel law firm DLA Piper – which itself has a significant pro bono program around the world – and said AIG wanted to get involved in the Asia-Pacific.

It was a case of right place, right time, with DLA Piper having been talking to the Thomson Reuters Foundation about conducting a global review of human trafficking compensation regimes around the world. Covering North America, Asia, Africa and Europe, it suited AIG’s global legal footprint – and the desire to do something good.

“We said yes. So we are working in conjunction with Thomson Reuters and we are doing research on compensation regimes,” Hopkins said. “Once it’s all done it will be posted on a website to allow the victims of human trafficking to get a sense of how they can apply for compensation. More importantly, it will allow advocacy groups to lobby for change in particular jurisdictions where the regimes are weak.”

Hopkins said law firms should be viewing pro bono work as a great marketing opportunity, because of its capacity to build relationships with in-house teams.

“Law firms market to us in different ways. They might ask me to a sporting event or ask me out to lunch. But the most effective marketing I’ve seen done recently is pro bono work.” Hopkins said firms may have no choice but to take this on board. “I think Gen Y has brought a lot of value, in that they just insist on doing it, and so law firms have to accommodate it and they should accommodate it,” he said.

AIG’s Australasian legal team will likely be doing more pro bono work in future.

“Sometimes on a Sunday afternoon when you are doing pro bono work, it can be a challenge,” Hopkins said, having done this for eight consecutive weeks. “But at the end of the day once the project is done and you get a sense you are helping someone, I think that is good for the team. We see it as an enabler, not a burden.”

“I think private practice lawyers probably prefer to have something written down. I truly believe we can turn things around faster” close relationship the team can boast with the business.

Beyond ‘postbox’ law AIG’s in-house team is at the right size.

Hopkins says the consolidated model is largely complete, with the right senior talent in place across its office footprint.

“Shortly after I came on board we recruited more senior lawyers, so I am at the moment very happy with where the team is

at in terms of diversity of expertise.”

However, this makes retention “absolutely critical” to Hopkins, and the future success of the team. “We would struggle if we lost a member of the team – any member.”

Reflecting on the model, Hopkins says he would recommend that other businesses build self-sufficient legal expertise, to add value in-house as business partners.

“Historically, some in-house teams – maybe not so much in general insurance

but in superannuation – have been more like postboxes, acting as conduits between the business and law firms,” Hopkins says.

“I don’t think that is good for morale; it is much better to have your lawyers actually doing the work and adding value, making the recommendations, otherwise people get bored.”

There’s one thing for sure: AIG’s business in Australasia has come to expect much more than postbox law.

“The goal is really to be the most valuable business partner that we can be.

The fundamentals are to give fast, effective and accurate legal advice, and the add-on is we really want to work on business partnering.”

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FEATURES

HOT LIST

THE LEGAL INDUSTRY’S

HOT LIST Australasian Lawyer reveals 2015’s hottest private practice lawyers working in the trans-Tasman legal market

Supported by

WHAT IS ‘HOT’?

This feature seeks to profile lawyers who have stood out among their peers in some way. It’s not all about deals. All manner of achievements were considered. These included non-transaction areas, pro bono work, involvement in landmark cases or judgments, or a result that defied the odds.

Lawyers featured here could also have simply been water-cooler talk – a result of having been involved in something that, from an industry standpoint, was nothing other than interesting or amusing.

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Of course, being included in a list such as this is a significant achievement, but we should also remember that, for one reason or another, many commendable lawyers never receive such accolades.

Thus, Australasian Lawyer’s Hot List does not purport to be an exhaustive listing of meritorious achievement.

Lawyers were selected for this feature based on submissions received from firms; nominations made on our website (australasianlawyer.com.au); and, in the dealmakers section, a look at those lawyers fronting significant deals that have made the news.

TRAILBLAZERS – LEADERS JASON BETTS Partner HERBERT SMITH FREEHILLS

MARK BAKER-JONES Partner DIBBSBARKER As more and more organisations recognise that climate change is an issue requiring urgent attention, Mark Baker-Jones gets busier. Widely known as a leading adviser on climate legal risk, Baker-Jones’ expertise is highly sought after by diverse clients, ranging from ASX corporates to local councils. He is an active advocate for action to deal with climate change, and his passion extends from his desk to his personal life, with his family of six living a car-free lifestyle.

Baker-Jones is chair of the Queensland State Government climate change adaptation partnership, a visiting fellow at QUT, and has presented at world-leading conferences and forums, including in association with UNESCO and the United Nations Environment Programme.

Jason Betts is one of Australia’s premier class action specialists and has acted extensively in shareholder claims, corporate distress liability issues and regulatory investigations and prosecutions. He acted for the Metcash parties in Fostif v Campbells Cash and Carry, widely regarded as one of the most significant litigation funding cases in Australian history.

In 2012, Betts co-authored the second edition of Class Actions in Australia, a leading text on class action law and practice, and this year has been recognised in Doyle’s Guide as one of the two pre-eminent commercial litigators in Sydney.

JOHN EAGLETON Senior associate KING & WOOD MALLESONS In one of the few industry firsts, John Eagleton acted for a consortium comprising of the Benevolent Society, Westpac and CBA on the $10m Social Benefit Bonds in cooperation with the NSW Government. Following the success of the project and the formation of a new specialist office, the Office of Social Impact Investment, Eagleton led KWM’s collaboration on a thought leadership project with the NSW Government to create a suite of social benefit bond documents that are to be freely available for use on new projects, allowing an affordable platform to access what was previously an inaccessible funding source. His innovative work and tireless passion for this sector will assist the engagement between the non-profit and private sectors on further social impact investment projects.

STUART BYRNE Partner CLAYTON UTZ Equity capital markets partner Stuart Byrne has led the ECM group through a stellar first half of 2015, leading the deal teams launching IPOs for a range of clients. His highlights include advising software solution provider MYOB on its IPO and ASX listing, giving the company a market capitalisation of $1.9–$2.3bn – the largest IPO to have launched in the Australian market so far this year. He also advised Amaysim as issuer on its proposed $210m IPO and ASX listing, altogether giving the company a market capitalisation of $518m.

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FEATURES

HOT LIST TRAILBLAZERS – LEADERS CATHY QUINN Chair and head of M&A MINTER ELLISON RUDD WATTS Cathy Quinn has been chair of Minter Ellison Rudd Watts since 2009 and under her watch the firm has unquestionably become one of the top firms in New Zealand. She is highly regarded for her specialist legal work in mergers, acquisitions, capital markets, corporate governance and private equity.

Quinn has led many trans-Tasman mergers and acquisitions, including for private equity, and advised on dual listings on the NZX and ASX. In 2015 she acted on the first dual-listed IPO under New Zealand’s Financial Markets Conduct Act. Quinn was a member of the Securities Commission for nine years and the only lawyer appointed to the government’s Capital Markets Development Taskforce, which led to significant institutional and legal reforms in New Zealand’s capital markets. She is a member of the Commercial Advisory Board to the New Zealand Treasury and the executive board of the New Zealand China Council.

ROBIN LYONS Partner MINTER ELLSION Robin Lyons is the driving force behind Minter Ellison’s MEStreamline – next generation technology with tailored workflow and document automation tools for client portfolios with a high volume of smaller matters. The technology automates workflow of routine legal matters based on predefined, common elements of legal transactions and best practice responses. The outcome is reduced risk and improved efficiency for routine legal work. MEStreamline has been embraced by clients for retirement villages and development conveyancing; by both landlords and tenants in relation to leasing portfolios; and by companies with high-volume immigration needs. Lyons leads Minter Ellison’s national retirement villages practice and is considered one of Australia’s foremost advisers to this sector.

KEN JAGGER CEO ADVENTBALANCE Ken Jagger is co-founder and CEO of AdventBalance, now the largest and fastest-growing alternative legal services business in the Asia-Pacific. Jagger observed both a market gap and a need to provide lawyers with more flexible work options.

Clients saw significant value in having lawyers work directly with them on site, and lawyers were looking for alternatives to traditional law firm structures. The result was the creation in 2008 of the AdventBalance secondment business model, which has grown to over 200 lawyers in six offices across three countries, and over $25m in revenue. Jagger leads change in the industry, challenging traditional structures, supporting NewLaw models, and continually looking for new ways to provide both clients and lawyers with better ways of working together.

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STEPHEN GILES Partner NORTON ROSE FULBRIGHT Stephen Giles is a senior corporate partner in Melbourne and head of the national franchising practice, having had a large role in developing the firm’s paperless franchising product. Launched back in April, the solution serves as a document production tool, a disclosure compliance tool, and is used for document management and record-keeping.

Improving compliance, minimising errors and cutting costs for clients, the product landed Norton Rose Fulbright on the Legal Innovation Index for 2015.

Giles has also served for 12 years on the board of the peak industry body Franchise Council of Australia.

BEN MCLAUGHLIN Partner BAKER & MCKENZIE Ben McLaughlin is the head of Baker & McKenzie Asia-Pacific Healthcare Group. This year, McLaughlin invented the Healthcare MapApp, enabling healthcare clients to access over 1,000 pages of legal information.

It recently won the Financial Times Legal Innovation in Technology award for Asia-Pacific.

He has worked on major healthcare transactions this year, including the spin-off of Reckitt Benckiser’s pharmaceutical division, Indivior; the spin-off of Baxter Healthcare’s biopharmaceutical division, Baxalta; and the sale by MSD (Merck & Co) of its consumer care division to Bayer.

GUY LETHBRIDGE Partner RUSSELL MCVEAGH Guy Lethbridge is acclaimed by sources as “a fantastic finance lawyer’. Clients praise Lethbridge’s “outstanding legal mind, and his willingness to understand the pressures we’re under and bring his legal experience to bear on our issues”. He is described as “one of the most outcome-focused finance lawyers”.

Lethbridge was involved in the landmark $125m bond offer by Warehouse Group, the first under new securities legislation requiring issuers to take a more considered approach to risks to investors.

JAMIE NG

DAN YANG Special counsel COLIN BIGGERS & PAISLEY Dan Yang is co-head of the China practice at Colin Biggers & Paisley. With law degrees from both China and Australia and several years’ experience practising in Hong Kong and mainland China, he is ideally positioned to be the interface between CBP and its Chinese-speaking clients, both inbound Chinese investors and established Chinese clients in Australia. Yang takes a leading role in acting for many major Chinese property purchasers and is driving CBP’s key initiative to help stakeholders in the aged care sector to cooperate under innovative and cutting-edge models.

MACAIRE BROMLEY Partner DIBBSBARKER Challenging the traditional ways that companies and their key stakeholders have managed distress, restructuring expert Macaire Bromley is a pioneer in the new wave of ‘turnaround management’.

Having worked at Allen & Overy in London on some of the largest corporate restructures in recent years, Bromley brings strong international perspective to bear in advocating for cultural change in Australia. She is a passionate supporter of law reform to provide greater flexibility to struggling businesses, and has engaged deeply in national discussion about Australia’s insolvency regime, including by authoring submissions in response to various government-initiated inquiries.

Partner ASHURST An Ashurst finance partner based in the Sydney office, Jamie Ng specialises in the areas of banking and structured finance (including securitisation and derivatives), project finance and real estate finance. He has extensive experience in the securitisation field and in highly complex international structured finance transactions.

This year, Ng led a team that developed a pioneering Shari’ah-compliant structure that will facilitate investment in property, and is suitable and practical within the context of Australian legal, taxation and stamp duty regimes. This was the first time this transaction structure was used in Australia, and addresses the needs of the growing Islamic finance market.

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FEATURES

HOT LIST RAINMAKERS SCOTT ABEL Partner BUDDLE FINDLAY In 2015, Scott Abel became the first New Zealander to pass the INSOL Global Insolvency Practice Course and be recognised as a Fellow of INSOL International.

Abel advises domestic and foreign banks, insolvency professionals and other organisations on receiverships, liquidations and workouts.

He is recognised by the market for his leading expertise in Personal Property Securities (PPS) law, often advising banks, insolvency practitioners and other firms and barristers on complex PPS matters.

YUEN-YEE CHO

COSTAS CONDOLEON

Partner KING & WOOD MALLESONS

Partner MINTER ELLISON

Specialising in acquisition financings, project and infrastructure and general corporate finance, Yuen-Yee Cho is the global practice coordinator for King & Wood Mallesons’ Banking & Finance practice. She has acted on structuring and documenting a new $400m syndicated fronted back guarantee facility for Woolworths, the world’s first facility under which a syndicate of global insurers provide back-to-back indemnities for bank guarantees issued by banks. She acted on the $550m Costa Group IPO and the acquisition of 35% interest in Velocity Frequent Flyer by Affinity Equity Partners, believed to be the first deal globally to involve an airline disposing of an interest in its frequent flyer business to a private equity sponsor.

Costas Condoleon has been central to the consolidation of ASX-listed telcos this year as they vie for position in the NBN environment, with pivotal and innovative transactions reshaping Australia’s telecommunications sector. He advised Vocus Communications on its $1.2bn merger with Amcom, creating Australia’s third-largest corporate telco; and, as a result of strategies he devised, this was the first time a scheme of arrangement vote succeeded in Australia in the face of a 20% objecting blocking stake. He advised TPG Telecom on its $1.6bn acquisition of iiNet; TPG ultimately prevailed in the public bidding war with M2 Group to create Australia’s second-largest provider of fixed-line broadband. He is currently guiding Vocus Communications in its $3bn merger with M2 Group Limited to create the fourth-largest telecommunications service provider in Australia.

ANNA BUCHLY Partner BELL GULLY Appointed to the Bell Gully board in January, Anna Buchly has advised on a range of high-profile public and private M&A transactions. She advised on the Medibank IPO and advised global investment firm Blackstone on the acquisition of Orica Limited’s Australasian chemicals business.

Recently, she has worked with Air New Zealand on a number of sale transactions and Forsyth Barr on the underwriting of an Arvida share placement and PFI renounceable rights issue. Buchly is the lead partner advising Crown Fibre Holdings Limited on its various contracts to the New Zealand Government’s $1.5bn Ultra-Fast Broadband (UFB) project, including on phase two of the initiative, which will extend UFB from a target of 75% to at least 80% of the New Zealand population, one of the largest infrastructure projects in New Zealand’s recent history.

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NIGEL DEED Partner NORTON ROSE FULBRIGHT

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Nigel Deed is a corporate transactional partner in Sydney and has played a major role in a series of stand-out deals this year.

His M&A work spans many industries and benefits from his significant cross-border experience, including many years working in London.

Deed was the lead partner on the Port Hedland International Airport deal for AMP Capital and Infrastructure Capital Group.

He also played a leading role on the $1bn acquisition of debt and equity interests by AMP Capital of Royal North Shore Hospital and the Macquarie Infrastructure and Real Assets consortium’s acquisition of Crown Castle Australia.

GRANT DUNN Partner BUDDLE FINDLAY Grant Dunn has broad experience in leveraged cross-border M&As, public takeovers, joint ventures and consortium arrangements, and international securities offerings. He has a particular focus on private equity and venture capital, having acting for some well-known Australian, US and UK-based VC, LBO and sovereign wealth funds on their formation, portfolio company acquisitions, financings, ongoing investment and exits.

Dunn has advised Pacific Aerospace on a 50% investment by Beijing Automotive; Affinity Equity Partners on New Zealand aspects of its A$640m acquisition of Nine Live from Nine Entertainment Co.; Abbott Laboratories on its joint venture with Fonterra to develop a US$300m dairy farm hub in China; and Goldman Sachs on the acquisition of Eden Business Park from Arena Property Fund.

Make a difference.

Do something that matters.

RORY MORIARTY Partner CLAYTON UTZ Corporate national practice group leader Rory Moriarty is growing a reputation as one of the market’s young guns. Recent deal highlights include co-leading the team that acted for Macquarie Bank on the acquisition of the Esanda dealer finance portfolio from ANZ (an $8.2bn deal), and leading the team that advised (alongside Freshfields) on Biostime’s $1.5bn-plus acquisition of Swisse.

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HOT LIST RAINMAKERS

LANDMARK ACHIEVEMENTS PIP GREENWOOD Partner RUSSELL MCVEAGH

JOHN STROWGER Partner CHAPMAN TRIPP NZ Deal Maker of the Year at the 2015 Australasian Law Awards, John Strowger specialises in corporate, contract and securities law and mergers and acquisitions.

He has advised on the market’s most significant deals across the entirety of his diverse practice. He worked on almost all of the ‘blockbuster’ M&A deals in 2014, approaching the $1bn threshold in New Zealand (the NZ$1bn-plus acquisition of Carter Holt Harvey Pulp and Paper; the NZ$950m sale of Transpacific Industries; and the NZ$1bn-plus joint venture and acquisition of Westfield malls), and advised on the largest IPO in the market in recent times, the NZ$736m Genesis Energy IPO.

PHILIPPA STONE Partner HERBERT SMITH FREEHILLS Joint global head of Herbert Smith Freehills’ Equity Capital Markets team, Philippa Stone specialises in equity and hybrid raisings, public company M&A, negotiated transactions, privatisations and corporate reconstructions.

Last year, Stone acted on Australia’s second largest ever IPO, the Commonwealth Government’s privatisation of Medibank Private. She advised AGL on its $1.5bn acquisition of MacGen, UGL on its 1.2bn sale of the global DTZ business, and Healthscope on its $3.6bn IPO, the second-largest IPO of 2014.

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Award-winning corporate partner Pip Greenwood is a core member of Russell McVeagh’s corporate advisory group, and is consistently praised by peers for her role in numerous major transactions.

Clients describe her as “exceptional – she embodies all of the strengths of the firm and is well recognised throughout New Zealand as a market leader”.

“She’s not only a great lawyer but she also has an excellent project management style in terms of pulling things together – she knows what matters and what doesn’t.”

Greenwood was involved in the landmark $125m bond offer by Warehouse Group, the first under new securities legislation requiring issuers to take a more considered approach to risks to investors.

JAMIE PRELL Legal director Australia ADVENTBALANCE Jamie Prell has over 30 years’ experience as a corporate and commercial lawyer, including 18 years as a partner at Mallesons (now King & Wood Mallesons). Since then Prell has enjoyed playing a key role as a legal industry innovator as legal director at AdventBalance, which has seen him working directly with clients as part of their secondment business model.

This year, in response to feedback from clients asking for more ad hoc and on-call services in addition to secondments, Prell spearheaded the recent launch of ‘AdventBalance On Call’, a new service providing clients with access to top-tier partner and GC-level lawyers on a completely as-needs basis at a fraction of the cost of traditional law firms, and giving senior practitioners the opportunity to practice in a completely new way.

COLLEEN PLATFORD Partner GILBERT + TOBIN Most notably leading the Gilbert + Tobin team in representing eight RiverCity companies in the Federal Court proceedings against AECOM, Colleen Platford is currently leading several proceedings, each worth over $1bn.

The AECOM case, in relation to damages over the Clem 7 Tunnel in Brisbane, settled earlier this year, paying out around $280m to Gilbert + Tobin clients, which made it one of the largest settlements of a misleading and deceptive conduct case in Australian history and the first case in Australia to be brought by a privately funded operator of a failed toll road.

JOHN MALON Principal HIVE LEGAL

GRANT KOCH Partner DLA PIPER Private Equity partner Grant Koch spearheaded Link Group’s ASX listing, the largest Australian IPO this year, with a market capitalisation of $2.3bn. He has extensive experience across a range of private equity transactions, having advised many of the most successful private equity investment houses investing in Australia, the Asia-Pacific region and the UK. Koch focuses on private equity and venture capital transactions, share and business acquisitions, capital management and complex equity arrangements.

John Malon was a long-standing partner of a top-tier firm and was for many years acknowledged as one of Australia’s leading financial services and funds management lawyers.

In February 2015 he joined Hive Legal, having retired back in 2013. He was attracted to, and energised by, Hive Legal’s unique model and the chance to do something truly new and innovative.

Malon has succeeded in returning from retirement and building a thriving financial services team and practice in a little over eight months, acting for some of Australia’s leading banks and financial institutions.

MARK REESE Partner CHAPMAN TRIPP Mark Reese recently returned to full-time practice, having led Chapman Tripp as jointmanaging partner for nearly a decade. He has acted on some of New Zealand’s most high-profile deals, including advising the ACC on its equity and debt investments into New Zealand’s largest PPP. Reese worked on all New Zealand aspects of Norske Skog’s global refinancing; with Chorus on the implications of recent regulatory decisions; and for a bidder for the Wellington metropolitan rail franchise.

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FEATURES

HOT LIST LANDMARK ACHIEVEMENTS JENNY STEVENS Partner BELL GULLY Jenny Stevens is currently advising Danone on all aspects of its dispute with Fonterra, following the August 2013 whey protein concentrate botulism scare, one of the highestprofile and most complex cases in New Zealand. She also acts for ANZ Bank in the class action proceedings brought by plaintiffs seeking recovery of bank charges. Stevens is a well-known adviser to businesses in the competition law area and has acted for clients such as Singapore Airlines Cargo and ANZ in some of New Zealand’s largest competition law cases brought by the Commerce Commission.

Martin Wiseman is chairman of DLA Piper New Zealand. He leads the corporate practice and has been at the firm since 1987.

He was an elected board member of the Australasian firm for several years from 2005, and was instrumental in the initial Australasian alliance with DLA Piper. As chairman of the firm, he was at the forefront of negotiations to fully merge the Australian business into DLA Piper in 2011. Following the merger, he continued as chair of the New Zealand business. In addition to his leadership responsibilities, Wiseman has always maintained a full client-facing fee-producing role.

SIMON VANNINI

Simon Vannini is a partner in Simpson Grierson’s corporate and commercial group.

Alongside his practice working on significant technology and infrastructure projects, he has built a name for himself, advising clients in the early stage/venture capital stage.

Late last year, Vannini led Simpson Grierson’s team advising Harmoney on its pioneering application for the first peer-to-peer lending service licence in New Zealand. Harmoney operates an online platform matching individual borrowers with lenders. Licensing peer-to-peer lending services was part of the FMA’s brief to facilitate new capital-raising opportunities in New Zealand, as well as part of the government’s business growth agenda.

Since helping to get Harmoney up and running, Vannini has also acted for Harmoney on its recent deal with Trade Me, as part of which Trade Me acquired a 15% shareholding in Harmoney.

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MARTIN WISEMAN Chairman DLA PIPER NEW ZEALAND

Partner SIMPSON GRIERSON

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PILLARS OF THE COMMUNITY

JANIA BAIGENT Partner SIMPSON GRIERSON Despite a busy dispute resolution practice, Jania Baigent still manages to find the time to assist a high-profile legal NGO based in China. Beijing Zhongze Women’s Legal Centre is looking at the legal framework for national criminal compensation systems in different countries. It aims to produce a report for the Chinese Government in the hope that it will introduce a national compensation system for victims of crime in that country. This work is indicative of Baigent’s ability to create positive change, whether resolving commercial disputes for her clients or assisting organisations on a pro bono basis. She is a role model within the legal profession.

LUKE GEARY Managing partner SALVOS LEGAL Luke Geary is a law firm leader dedicated to helping those less fortunate.

In 2015, Salvos Legal Humanitarian acted in over 3,000 pro bono cases, bringing the total number to more than 14,000 in the five years since Luke founded the firm. The firm provides free services to the disadvantaged and marginalised throughout Australia, without government funding.

Geary has an ambitious plan to provide over $25m worth of free legal services annually by 2020, and is on track to do so, with numerous major ASX 200 companies and government clients flocking to be paying clients of the firm.

DARREN FITTLER Partner GILBERT + TOBIN Widely acknowledged as one of Australia’s leading charity lawyers, Darren Fittler heads up Gilbert + Tobin’s Third Sector Advisory Group, which he has developed into a first-rate legal service provider for charities and not-for-profits.

Fittler was the recipient of the 2014 Human Rights Commission Law Award, which recognised his long-term commitment to assisting not-for-profits. He is a strong advocate for disability rights and was involved in the development of the Convention on the Rights of Persons with Disabilities at the United Nations. He is passionate about empowering organisations to do what they do, better.

SIMONE WHETTON Partner COLIN BIGGERS & PAISLEY

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In addition to mentoring a number of women and advising others starting out in their careers, Simone Whetton is a Colin Biggers & Paisley Foundation ambassador and sits on the boards of two theatre companies – as member of the board of Griffin Theatre, supporting new Australian playwrights, and chair of Legs on the Wall. A Senate-appointed director of the University of Sydney Union, Whetton guides and mentors students. She is also a board member of the German Australian Chamber of Industry and Commerce and vice president of the Society for Australian-German Student Exchange. Her fluent German and keen interest in German business are appreciated by her German clients.

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HOT LIST PILLARS OF THE COMMUNITY SOPHIE MCNAMARA

KATIE SWEATMAN

Senior Associate ASHURST

Senior Associate K&L GATES

A nominee for the AFR and Westpac’s 100 Women of Influence list in the Young Leader category, Sophie McNamara is a senior associate in Ashurst’s pro bono team.

She helped organise Ashurst’s inaugural Not-For-Profit Health Check, a day-long workshop comprising of a seminar on key legal issues, giving the opportunity to sit down with lawyers and evaluate. The event was so successful and pro bono clients found it so valuable that she is now working on rolling the program out nationally.

McNamara drives many of Ashurst’s pro bono initiatives, including a clinic for Aboriginal people in regional, rural and remote NSW, and for parents and carers of people with impaired capacity on wills, powers of attorney and enduring guardianship; and supervising two outreach clinics at a women’s refuge and homeless shelter.

Katie Sweatman spearheaded a K&L Gates team that worked closely with the Kaleidoscope Australia Human Rights Foundation to draft a best practice guide to determine refugee applications on the basis of sexual or gender identity.

Her work resulted in the production of a guide to help refugees fleeing persecution because of sexual orientation. It provides reliable information and practical guidance to properly and fairly assess applications for refugee status made on sexual orientation or gender identity grounds, and provides refugee advocates and NGOs with a tool to assist them in effectively representing asylum seekers in their claims.

Sweatman’s work has also aided the development of K&L Gates’ cross-border global pro bono team, supporting each other in LGBT human rights projects.

MELINDA UPTON Partner DLA PIPER Melinda Upton is head of DLA’s intellectual property practice in Australia, and Australian chair of the firm’s LAW (Leadership Alliance for Women) initiative, which aims to empower DLA’s female lawyers by developing leadership skills and creating business development opportunities. She plays a key role in a number of community-based initiatives, such as MS Angels (dedicated to helping MS research in Australia), and is active on the board of the Tristan Jepson Memorial Foundation. Upton is a leading IP partner with extensive experience across all aspects of brand protection and enforcement, both in Australia and globally.

MITZI GILLIGAN Founding principal HIVE LEGAL Mitzi Gilligan has strong and unwavering commitment to improving the path for colleagues, clients and those seeking access to justice. She advocates for workplace cultures that actively support lawyers to reach their potential inside and outside of work, and is an insightful mentor.

Over the last 12 months Gilligan has worked with her Hive Legal colleagues to embed progressive, sustainable and flexible working practices for everyone at the firm. She is chair of Justice Connect, dedicated to harnessing the power of pro bono legal help to create a fairer and more just world. Gilligan has also led the establishment of Hive Legal’s flourishing pro bono practice.

MARY-ANNE IRELAND Partner SALVOS LEGAL Mary-Anne Ireland is an integral member of the Salvos Legal partnership. Her contribution to mentoring and developing a large group of young lawyers, volunteers and interns is fundamental to ensuring the firm can continue to provide outstanding legal services to those less fortunate.

Learning and mentoring are paramount for Ireland as she ensures that all young lawyers are given first-class training and support at Salvos Legal and receive guidance in learning how to properly undertake all facets of life as a lawyer.

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PROFILE

SUE KENCH

VIEW FROM THE TOP King & Wood Mallesons Australia managing partner Sue Kench talks to Australasian Lawyer about juggling motherhood with being a managing partner, and how to get more women into the upper echelons of law

‘A LAWYER and a business person walked into a bar …’

The glass ceiling is more than welldocumented in the Australian legal profession: despite the fact that most law grads are female, very few filter through to the top.

And yet, according to Sue Kench, Australia managing partner at King & Wood Mallesons, this makes no business sense.

managing partner, Kench knows she’s got a role to play in the push for diversity in the upper echelons of law firms.

“I recognise the opportunity to influence the development of talented women and to push for their advancement. I also recognise that I am a role model for not only women but also men who have aspirations for partnership or in leadership,” she says.

“Organisations with diversity in leadership and decision-making have been shown time and time again that they outperform” “We are a people business,” she tells Australasian Lawyer. We must attract and retain the best people. As over 50% of our graduates are women, why would we not do everything possible to ensure they can operate at their best and be successful?”

Apart from being the right thing to do, it’s “clearly” the right business decision, Kench says.

“Organisations with diversity in leadership and decision-making have been shown time and time again that they outperform.”

As King & Wood Mallesons’ first female

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And she’s been playing her part thus far: over the past two years she’s appointed several women into leadership roles, and the firm’s executive team now stands at 50% female.

Fifty-seven per cent of the firm’s Partnership Committee is now female.

“I have also encouraged more women to put themselves forward as candidates for the board,” she says.

She’s done something that other firms are only just garnering momentum on: “I have made gender diversity a strategic priority.”

“I have made gender diversity a strategic priority�

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SUE KENCH This includes the introduction of a raft of initiatives, from a gender target for the Australian partnership (to be 30% female by 2015; it is currently sitting at 26%), to a comprehensive suite of toolkits and resources for working parents and primary carers (the majority of whom are women) of children and older dependants, including emergency childcare and a continuously reviewed diversity strategy.

“In early 2015 we rolled out our bespoke ‘What Counts’ diversity and inclusion

the legal profession,” she says.

“Specific actions to be taken as part of these initiatives include tracking gender diversity data in areas such as at a partnership and senior leadership level, and also the gender equality of briefs to the bar; inclusion of gender diversity KPIs for leadership positions in the firm; and sharing each firm’s experience in relation to part-time/flexible work practices.”

She has also recently signed up to be part of the Workplace Gender Equality Agency’s

“Being a mum makes me a better leader.

I’ve learned patience and resilience from my children and they keep me grounded. Of course I feel guilty sometimes, but I don’t know any women that don’t” survey across the firm to provide a tangible benchmark to inform the next iteration of our diversity goals and activity,” Kench says.

And it’s working: 55% of new internally promoted Australian partners are female.

“Significantly, [the fact that] 80% of those new partners work flexibly is evidence of our commitment to diversity at the highest levels, and provides more junior staff with senior role models in the workplace.”

The firm’s signed up to the Law Council of Australia Diversity and Equality Charter, which sets out the commitment of the profession to promote diversity, equality, respect and inclusion consistent with the principles of justice, integrity, equity and the pursuit of excellence upon which the profession is founded.

Other steps in place to encourage diversity include blind recruiting, pay gap analysis, and succession pipeline and planning, she says.

Kench is also a core member of the Managing Partners’ Diversity initiative.

“We have been meeting on a regular basis over the past 12 months to develop specific initiatives which our firms can individually and collectively undertake to make a positive impact on improving gender diversity across

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CEO Pay Equity Ambassador campaign to address the pay gap between women and men.

Mother and managing partner “I did not have grand ambitions of leadership when I was starting out,” Kench says. “I was just focused on building up a solid foundation of knowledge, relationships and experience – although I did always have the ambition to be the best at what I do, and to be a partner at a law firm.”

But that wasn’t her only focus as a junior lawyer.

“I knew I wanted two things: one, to be a success at what I do; and two, to have children and enjoy my family.”

And the mother of three has succeeded in doing just that.

“I made it work – it’s not easy, but I try and stay in control and prioritise. And I am a realist,” she says.

“I have a very supportive husband – he is one of the main reasons that I am able to juggle a demanding job and family commitments.”

Like all working mothers, she’s had to improvise on countless occasions to meet her

TIMELINE

1993 Kench joined Mallesons in 1993 after working for about three years for a “magic circle” firm in London, and was appointed as a senior associate that year

1996 She made partner in 1996 – the first female partner in the firm’s real estate practice

2005 In 2005 Kench took on the role of co-chairing the firm’s Admissions Committee. Soon after, she joined the Partnership Committee – the committee that oversees partner admissions, retirements and wellbeing

2010 Kench was appointed to the firm’s board in 2010 and was a board member for three years until she joined the management team in 2012 as managing partner for real estate, construction and infrastructure. In this role she successfully restructured teams across the firm to make them more client-centric and industry-aligned

2013 In 2013 when the managing partner Australia role became vacant, Kench was chosen to lead the Australian firm

work and family obligations and “keep all the balls in the air”.

“I have learned to delegate – glass balls mine; rubber balls others. I have to think outside the box to find creative solutions when I have to be in two places at once.

“But being a mum makes me a better leader. I’ve learned patience and resilience from my children, and they keep me grounded. Of course I feel guilty sometimes, but I don’t know any women that don’t.”

So, how does the day begin for a working mother who happens to be the managing partner of a global law firm?

“Mornings are all about the children,” she says. “I have three kids, so as you can imagine it can be a bit hectic trying to get them all ready for school, but I love it.

“This is a special time for our family to be together. I work late, so the mornings are when I’m around at home. That said, I start the day reading emails at 6am and start making calls once I’m in the car – Sydney traffic allows for this.”

As managing partner for Australia, Kench is responsible for the strategic direction, growth, leadership and network integration of the firm.

“Central to this is our clients and our people,” she says. “This means ensuring that the service our firm delivers is of real value to clients. And of course this also means that we look after and develop our people so they can be their best.”

She’s not sure if she ever really has a ‘typical day’.

“I am no longer involved in hands-on legal work. I let go of this when I took on the reins of managing partner, but bring many of the skills I developed as a transactional lawyer to my new management role.”

An average day might include meeting with clients to discuss how the firm is meeting its expectations and what the firm can do to deliver more value; meeting with members of the firm’s executive team; and meeting with partners and managers across the firm to check on what’s happening on the ground.

“At a high level my role can be looked at under two pillars – management and

leadership,” Kench says.

On the management front, Kench says she leads an executive team of “people who seek to ensure we are working to our stated goals and meeting the needs of our business, our clients and our people”.

“While there are obviously the day-today operational and performance issues that need my constant attention, I try to take time out each day to focus on the firm’s plans for growth.”

On the leadership front, Kench says her role as managing partner means her aim is to empower and influence others.

“There is only one of me but 1,300 in the firm” Sue Kench on leadership “Having set our direction and our approach to growth, we must execute on this; it is important because that is where opportunities for our people will come from.

“There is only one of me but 1,300 in the firm. What matters most is turning strategy into action – making this practical and translating it into actions for everyone. This is a journey for the business and for each of us along the way.”

The rise to the top Kench initially joined King & Wood Mallesons, known then as Mallesons Stephen Jaques, in 1993 because it had the country’s best real estate practice.

“I was determined to be the country’s best real estate lawyer,” she says.

“Real estate was a great fit for me – it gave me exposure to a number of different areas, including tax, corporate, finance, equity and funds, and this enabled me to develop a broad web of relationships across the firm and not specialise in one niche field.”

She thrived on the fast-paced and challenging role of a transactional lawyer.

“I knew it was important to differentiate myself and my practice.

“Like most women, I didn’t naturally self-promote, and I hadn’t considered putting myself forward for any type of leadership position until encouraged by others. I am now focused on reaching into the firm and ensuring our female talent are given opportunities to step up and take on leadership roles.”

Kench made partner in 1996, and was the first female partner in the firm’s real estate practice. She was then appointed to the board in 2010 and was a board member for three years until she joined the firm’s management team in 2012, as managing partner for real estate, construction and infrastructure.

In 2013 when the managing partner Australia role became vacant, Kench was selected to lead the Australian firm.

“One of my main drivers as managing partner has been to embed our client-centric strategy, and promoting how we can do this differently,” she says.

“With this comes change. In order to successfully implement and embed the changes required, I knew I had to bring everyone within the business on the journey and align everyone around shared priorities.”

She is conscious of using influence and motivation rather than forcing her plans on the business and expecting everyone to fall into line.

“This has been by far one of the biggest challenges; as we are constantly evolving, this challenge remains.”

So, what does Kench enjoy most about her role?

“Ideas and cultivating ideas across the firm, and doing this differently,” she says.

“I’m a curious person, so thinking and choosing what to do next is terrific. I also love designing something that will set us apart.”

Curious is perhaps one of Kench’s defining features, along with an ability to bend the rules. When asked how she would describe herself in three words, she replied: “Can I have four? Passionate, determined, curious and brave.”

And it’s this ability to break the rules that is likely to see her continue to make strides in the diversity space.

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ACROSS THE DITCH New Zealand’s top-tier firms talk to Hannah Norton about their major milestones of 2015 and what’s in store for next year

A FLATTENING IPO market and strong M&A activity have been the hallmarks of 2015 for some of New Zealand’s top-tier firms.

“After two very strong years, IPO traffic has slowed, reflecting the flatter economy,” Chapman Tripp chief executive partner Andrew Poole tells Australasian Lawyer. “But our corporate teams are maintaining good workflows, particularly in the M&A area.”

The firm was one of three major Kiwi firms to play a role in the largest M&A transaction of the year to date – Z Energy’s purchase of Chevron NZ for $785m.

Acting for Z Energy were Minter Ellison Rudd Watts (commercial negotiations, due

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diligence and OIO consent) and Chapman Tripp (debt and equity funding, NZX

internationally on Chevron’s downstream divestment program.

“After two very strong years, IPO traffic has slowed, reflecting the flatter economy” Andrew Poole, CHAPMAN TRIPP require­ments and CC application).

Buddle Findlay acted for Chevron NZ, and Chevron’s international team included Mike Jeffs, a Kiwi lawyer now based in Houston, who has been acting

“Chapman Tripp [advised] Z on the Commerce Act implications and the financing arrangements, both debt and equity,” Poole says. “We also advised on a large block trade for Z earlier in the year.”

At the start of the year there was an expectation that a number of IPOs would come to market, Bell Gully chairman Chris Gordon says.

“The Fliway IPO, on which we advised, was the only one completed up until the end of September.”

Accordingly, he says, Bell Gully has worked closely with clients on alternative ways to meet their funding needs.

“On the flip side, we have seen strong mergers and acquisitions activity in 2015 and, because the firm has acknowledged strengths in both of these practice areas, there has been no let-up for our team.”

A key regulatory development in this space has been the implementation of the Financial Markets Conduct Act (FMCA) 2013, which includes the requirement for issuers to prepare a single product disclosure statement (PDS) tailored to retail investors, rather than the current requirement for issuers to prepare a prospectus and investment statement, unless an exemption under the Act applies.

“Our firm has been at the forefront of the first few deals to market under the new Financial Markets Conduct Act, which came into effect in December 2014 [such as the] Warehouse Bond issue and other IPOs,”

Russell McVeagh CEO Gary McDiarmid says.

“Financial and economic regulation is still a big focus. Issuers have started implementing the FMCA regulations this year.”

Biggest moments For Russell McVeagh those deals were defining moments of 2015.

“Another major focus has been our ongoing diversity initiatives,” McDiarmid says.

“The firm was shortlisted for an EEO Gender Diversity Award and has one of the highest rates of women partners at any law firm in NZ (26%).”

The firm is also advising over 50 clients

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on the Auckland Unitary Plan (unification of the district and regional plans that existed prior to the formation of the single Auckland City Council), which is currently at the hearings stage and due to end early next year.

Cathy Quinn, chair of Minter Ellison Rudd Watts, tells Australasian Lawyer that while the firm has heard much about a slowdown in demand for external legal

about how to work under the new regime, including how to write a PDS under the FMCA,” says Quinn.

For Chapman Tripp, the greatest source of satisfaction was seeing the strong culture of engagement and pride in the firm, recognised both internally and externally this year, Poole says.

“Our internal workplace survey got a response rate of 84% and showed that we

“Every specialist area within the business has been busy with difficult and complex work for significant private, public and local government sector clients” Peter Chemis, BUDDLE FINDLAY advice, this has not been MERW’s own experience.

“The New Zealand business community and economy as a whole has been generally pulling in the right direction, albeit bumpily at times, and our clients have been in the thick of it,” Quinn says.

“There has been some major legislation overhauls, for example in the securities law space, and that means things have to be done differently. This also meant lots of interesting work across each and every one of our practice areas and sectors.”

Aside from the Z Energy-Chevron NZ transaction, work highlights for the firm have included Evolve Education’s acquisitions and listing on both the NZX and ASX. Quinn says the acquisition workstream involved negotiating with 39 different vendors.

MERW has also been involved in a series of firsts under the FMCA, including advising CBL Corporation Ltd in preparation for its dual listing on the NZX main board and ASX. “This required a major rethink

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outperformed our external benchmark group on every measure.

“In particular, it showed that our people are proud to work for Chapman Tripp and feel that they’re working for a successful organisation.”

The firm has been working hard on its diversity strategy and were pleased to win a White Camellia award this year for showing high-level corporate leadership around gender equality.

It also won Australasian Lawyer’s Employer of Choice award for New Zealand in 2014 and 2015 and was named Legal Personnel Employer of Choice (110+ employees) at the New Zealand Law Awards last year.

“Our firm is tracking very strongly and very positively,” Poole says.

Meanwhile, Bell Gully is celebrating its 175th anniversary this year.

“So it has been fitting that this year has been a strong year for the firm across a number of areas,” Gordon says.

“We’ve had a change of leadership, as Ian Gault and I took on new roles as deputy chairman and chairman respectively, and we’ve worked with our clients on a range of significant matters that cover the full spectrum of the firm’s practice areas.

“These include a number of class actions, a major PPP – we’ve acted for the New Zealand Government on all its PPPs to date – and … the Fliway IPO.” The firm also advised Contact Energy on Origin’s sale of its Contact shares for NZ$1.81bn, one of the largest deals ever undertaken in the country (Simpson Grierson advised Macquarie Capital while Russell McVeagh acted for Origin Energy), and advised David Jones on the acquisition of the leasehold interest in the retail department store of Kirkcaldie & Stains – paving the way for the first David Jones store to open outside of Australia.

It’s been a strong year for Simpson Grierson, with quite a few highlights, according to chairman Kevin Jaffe.

“We’ve picked up instructions on many of the biggest deals – for example Origin Energy’s sale of its stake in Contact Energy, and Shanghai Maling Aquarius’ investment in Silver Fern Farms.

“We’ve also continued to take a leading role around diversity and inclusion, being recognised at the EEO Trust Awards and the White Camellia Awards.”

However, for Jaffe the biggest moment was probably having Tony Ryall join the firm as head of public policy.

“With a background as one of New Zealand’s most respected politicians, Tony has brought considerable experience and new ideas to the firm.”

Peter Chemis of Buddle Findlay says there has been no single biggest moment for his firm this year.

“Rather, it was a series of big moments in the sense that every specialist area within the business has been busy with difficult and

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complex work for significant private, public and local government sectors,” he says.

Global law firm enters the market The biggest moment for DLA Piper New Zealand – formerly DLA Phillips Fox – was merging completely with the global DLA Piper brand in March of this year, says the firm’s chairman, Martin Wiseman.

“This follows nearly a decade of growing integration with DLA Piper and more than 20 years’ collaboration and integration with Australia. It demonstrates how we lead the legal services market in recognising and responding to the changing needs of client organisations as they become increasingly

continues to be tight and highly competitive, Poole says. This has meant that Chapman Tripp has had to focus on maintaining and increasing strength across its three offices, “ensuring that we recruit and retain top talent, encouraging good work-life balance, and offering strong career paths and opportunities to our people.”

That commitment to retaining top talent has included implementing formal flexible work arrangements for around 25% of the firm’s employees, as well as informal flexible arrangements for others, he says.

“At the end of each financial year, the board reviews various metrics related to gender, including promotions, new hires

services to complementary areas where we think there is good client demand. For example, in addition to our new public policy unit, which we launched in January, we have just launched a health and safety consultancy service.”

Quinn agrees that the battle for talent is an ongoing challenge, as well as the trend for people to move in-house.

“Gone are the days of people spending a large part of their working life with one firm,” she says.

“The in-house teams are sophisticated and growing in size, meaning that the work sought from law firms is also more specialised and competitive.”

“[A] challenge has been adjusting to the pace at which the global firm moves; there is a real sense of urgency” Martin Wiseman, DLA PIPER NEW ZEALAND global or influenced by global trends.”

In becoming DLA Piper the firm was the first mover in the New Zealand market, Wiseman says.

“We have had to demonstrate to the New Zealand market what that practically means for them and how it adds value.

“The answers are: it’s easier for us to attract and retain the best people; we have access to expertise and exposure to global trends in law; and we can introduce clients to trusted advisers anywhere in the world with strong local networks.

“We’re finding we are getting good traction with general counsel who have worked overseas and with other international organisations who understand DLA Piper’s reach, brand and reputation.

“Another challenge has been adjusting to the pace at which the global firm moves; there is a real sense of urgency.”

Obstacles and challenges Overall, the New Zealand legal market

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and departures, performance ratings, salary increases, bonus outcomes and flexible working practices.”

Similarly, a major and ongoing challenge for Simpson Grierson has been the difficulty of finding good lawyers in many practice areas, particularly corporate and commercial, Jaffe says.

“We face stiff recruitment competition from other firms, in-house teams, and increasingly Australian firms, as well as losing younger lawyers who head off to London and other international markets.

“There is no easy answer to this but we have put in place a number of measures to help, including being more flexible about relocating lawyers to new teams or between offices.”

Driving revenue growth is another challenge, particularly in a competitive and mature market, Jaffe says.

“One way we are addressing this is by diversifying our service offerings. This includes looking beyond traditional legal

Quinn raises the subject of assisting senior women in the profession to balance work and family life.

“Despite what firms say in their marketing spin – both in NZ and internationally – if truthful, firms are generally still struggling to make it work for senior women, in particular, who wish to operate at the top of their game and potentially work part-time due to family demands,” she says.

“The answer is not for these women to get paid for working four days but actually work 5.5 days. We don’t claim to have it 100% right. However, we do have some partners who are leading the way in attracting top female talent because of their willingness to really make it work for capable women who do actually want to work part-time.”

Russell McVeagh’s McDiarmid lists a number of factors as hurdles and challenges.

“Technological advances, generational demands, cybersecurity and competitive market forces have all added to the complexity of running a legal firm,” he says.

“We face stiff recruitment competition from other firms, in-house teams, and increasingly Australian firms, as well as losing younger lawyers who head off to London and other international markets” Kevin Jaffe, SIMPSON GRIERSON “The rise of in-house counsel has impacted the way in which we engage with our clients.”

An added layer of complexity comes

when clients have had their internal business units centralised, calling for the need to deal with heads of legal based

in other countries such as Australia and Singapore, McDiarmid says.

Emerging trends Talking trends, Chemis of Buddle Findlay says: “As far as we are concerned it is more or less business as usual. That includes very discerning clients who have a constant and critical eye on the commerciality and usefulness of our advice, and on price.

“We are also now working in a number of environments where sophisticated levels of collaboration are required, together with risk-sharing around fees. This has required rethinking the lawyers’ traditional model, and high degrees of trust between ourselves

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and our clients and other providers, which has been both challenging and refreshing.”

Investment interest from China continues to be strong, Poole says, and through Chapman Tripp’s China Desk it is supplying a steady workstream.

high, reflecting increases in both governance requirements and scope for personal liability under the new legislation.”

McDiarmid agrees, noting the Health and Safety at Work Act coming into effect in April. He also observes “an ongoing holistic

“Firms are generally still struggling to make it work for senior women, in particular who wish to operate at the top of their game and potentially work part-time due to family demands” Cathy Quinn, MINTER ELLISON RUDD WATTS

There is still considerable pressure from clients to drive down costs, he says.

“We are also continuing to see in-house teams grow, and an increase in secondment requests. We have to work really hard to ensure that we are delivering great value to our clients.

“Longer term we are very aware that new technologies, for example the rapid growth in data processing capacity, will transform all knowledge sectors, including legal.”

This disruption is a threat in some ways but also a great opportunity for law firms, Jaffe says. “The key is to embrace it, invest in it and think about how to shape our business model around it. The potential benefits around productivity are huge, and this should lead to a better service for clients.”

What’s in store for 2016?

“Other strong work sources are the transition to, and the opportunities created by, the Financial Markets Conduct Act 2013; the preparation for the new health and safety regime which is based on the Australian model and comes into effect on 4 April next year; the continuing construction boom, although with the focus moving from the Christchurch rebuild to the Auckland housing market; and changes in government procurement for the provision of social services,” he says.

“There is also much interest in the impact of technology both internally around how legal services are provided and, from a client perspective, around the need to protect data security.”

According to Bell Gully’s Gordon, there are a number of areas that clients say are top of mind.

“Class actions are a hot topic, having not previously been a major part of the New Zealand litigation landscape, and Bell Gully is defending clients in three of the most significant cases currently before the courts.

“Interest in health and safety is extremely

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approach of corporate social responsibility, mental health and general staff and wellbeing”.

Cybersecurity is also fast becoming a key concern for most businesses, Gordon adds.

“We’ve had huge interest in an upcoming seminar being led by one of our senior associates who, earlier in her career, was part of a team advising on one of the first – and still one of the largest – major hacking incidents globally.”

Wiseman’s view is that current trends in the sector are well documented. He describes these as “high-performing senior in-house lawyers as trusted advisers to the board and executive; technology changing how services are delivered; overcapacity in the market; the world getting smaller; the need for lawyers to add value over and above the intelligent use of Google”.

And Jaffe echoes his sentiments.

“I think that most of the things that we are seeing in the New Zealand legal market are a continuation of existing trends. For example, the ‘more for less’ challenge from clients, which is certainly not new.”

Chemis says Buddle Findlay expects the legal market in 2016 to again be strong. “However, economic indicators and confidence levels suggest that there will be a degree of caution in play which may impact on activity levels.”

Poole’s predictions for 2016 include “more of the same also in terms of market dynamics”.

“Although, as economic growth slows, we would expect an uptake in restructuring and insolvency work.”

The latest 30 Year National Infrastructure Plan anticipates expenditure by local authorities and central government of $11bn a year over the next 10 years, Poole says. “[That] should keep our construction and major projects team busy.

“Also, the new government procurement models – social bonds; an actuarial, investment-based approach to social service funding; the transfer of a large proportion of state housing to private funders and voluntary providers – are now in the very early stages of implementation, and in many cases the policy is still evolving.

“We anticipate that they will provide an interesting and innovative body of work.”

Chapmann Tripp also anticipates that the more flexible capital-raising options created by the FMCA and the more investor-friendly offer documentation will stimulate increased levels of corporate activity.

“Already there is evidence of this effect.

The Financial Markets Authority Annual Report for the 2014/15 June year shows 25 same-class offers were made and that six new crowdfunding and two peer-to-peer lending platforms were licensed.”

Poole says another trend is the enticing away of younger lawyers by the London market since its post-GFC recovery.

“We’d expect that trend will intensify, but recognise that it provides an opportunity as

“Technological advances, generational demands, cybersecurity and competitive market forces have all added to the complexity of running a legal firm” Gary McDiarmid, RUSSELL MCVEAGH much as a challenge, helping to build our links with key UK firms, provided that we can entice them back once they’ve had the benefit of the London experience.

“Historically, we’ve had a good success rate on that score and we will continue to put in the effort to ensure that remains the case.”

Wiseman’s predictions include “increased

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M&A from foreign direct investment; continued pressure from clients to deliver more quality for less cost, and in new ways; the competition to attract and retain best people intensifying”.

Gordon believes a number of the trends observed this year are likely to continue.

“With the New Zealand economy still relatively stable and a stimulatory interest rate and exchange rate environment, there is confidence in the market that mergers and acquisitions activity will hold up as we head towards the start of 2016.”

Australian firms have become more active in New Zealand this year as they rebalance portfolios to include New Zealand assets, Gordon says.

“Private equity activity is likely to continue; in particular, infrastructure remains a significant area and is likely to be for some time,” he says. “Beyond the Christchurch rebuild there are a range of projects planned or underway in Wellington and Auckland, including Auckland’s City Rail Link – on which the firm is acting – and other major roading projects.”

McDiarmid believes it should be another good year for business and, as a result, law firms, although he’s expecting to see ongoing volatility.

He says a key influencer is going to be the Trans-Pacific Partnership, the free trade agreement between 12 nations, including Australia and New Zealand, which links 40% of the world’s economy.

“The TPP is going to impact areas like patents/IP, overseas investment and exports, and possibly disputes – it has the potential to generate a lot of work for companies and their lawyers,” McDiarmid says.

He also notes that property/planning is going to continue having a major impact.

“Planning processes currently underway are due to continue for a while, and Auckland in particular is experiencing a property boom across all real estate sectors.”

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“Class actions are a hot topic, having not previously been a major part of the New Zealand litigation landscape” Chris Gordon, BELL GULLY IT law has the potential to impact on businesses, he adds. “The New Zealand Government is also reviewing its laws in the telecommunications, IT and media and entertainment sectors, which could have a big impact on businesses.”

Tourism is now the fastest-growing sector in New Zealand, McDiarmid says. “There’s also increasing visibility of Chinese investors and customers in this market. This will be aided by the significant depreciation in the NZ dollar over the past 12 months.”

He also makes a few global observations.

“There is the potential for regulation to expand beyond what is seen as the traditional markets, as increased competition in the global market means more innovation in the sale and distribution of products and services, for example expansion into other commodity markets – possibly even virtual economies over time.”

McDiarmid predicts the rapid advances in technology across many sectors will see regulation and legislative reforms change in order to keep up. “For example the rapid increase in non-commercial drones has impacted the aviation industry globally”.

Quinn adds that in-house teams will continue to grow in 2016.

“Firms will have to learn how best to adapt to support them,” she says.

“The general counsel community will continue to step up and become trusted advisers internally. Some are there, but not all. Private practice will need to work out how to support this movement and stay relevant.”

Emphasising the link between the legal market and the economy, Quinn discusses the impact of stress in the dairy industry.

“While dairy only makes up 5% of GDP, how well this key sector of our economy is doing impacts on business confidence. That does have a flow-on effect for the demand for legal services.

“While certainly the recent announcement around the TPP was disappointing for dairy, it is seen as positive for significant other parts of the agriculture sector. This may cause greater investment by foreign capital in those sectors.”

Jaffe’s view is that it’s tough to predict next year, with a lot of uncertainties around the macro economy.

“I am broadly positive, though. This year the legal market has been driven largely by corporate activity – M&A rather than equity capital markets – and project work. I think it is likely that this will continue into 2016.”

He says a lower Kiwi dollar will mean New Zealand will remain attractive to overseas investors.

“A potentially tougher local and international economy could dampen work levels in some areas but may lead to a pick-up in others, for example restructuring and insolvency work.”

The government’s reform agenda, which is another driver of legal work, is relatively thin at the moment, Jaffe adds.

“In addition to implementing the new health and safety regime, privacy law reform, social housing and infrastructure funding will be on the agenda. Reform of the Resource Management Act, which has stalled, will be a big test for the government. And issues around pay equity, climate change and water ownership will also be testing.”

Leaders in Law Meet our new Faculty Members

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AUCKLAND LAW SCHOOL www.australasianlawyer.com.au

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PROFILE

BILL MAGENNIS

VETERAN OF VIETNAM Allens partner Bill Magennis is among the few lawyers who have been advising in Vietnam since the country first opened its doors to foreign investment. And as Ben Abbott finds, a passion for his team’s success means he has no plans to leave

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BILL MAGENNIS’ interest in Asian law began when he relocated to Hong Kong in 1985 with Phillips Fox & Masel and got a chance to try his hand at some work in China.

“At the time, my colleague wasn’t as keen on this emerging area, and, as it happened, one day we had some people in the office and I said I was interested.”

Finding a book on foreign investment, by guru Michael Moser, in a shop window next to Hong Kong’s Star Ferry, Magennis picked it up – and his Asia career began.

“In those days in China, there were no cars in the streets, and people were wearing greenand-blue military-style uniforms,” Magennis recalls. “Everything was underdeveloped, and I just found the whole thing very interesting.”

Though his initial foray into Asia was to end with the Tiananmen Square crisis in 1989, his interest eventually led him back to Vietnam, where he ran Phillips Fox’s Vietnam practice from 1993. Magennis later joined Allens and has led the firm’s team in Vietnam since 2008. And as he confesses to Australasian Lawyer, he has no wish to return home just yet.

“I am interested in Asia generally, the place where East meets West, capitalism meets communism, where the developing meets the developed. Documenting transactions at that intersection I have always found far more interesting than when everyone is from the same culture and experience,” he says.

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PROFILE

BILL MAGENNIS

Finding Vietnam Today, Magennis can look back on a prestigious career that has seen him act as lead partner on some of Vietnam’s most important deals and projects.

For example, in 2013 he led a team of 30 lawyers giving advice to borrower Nghi Son Refinery and Petrochemical Company and sponsors on the US$5bn financing of Vietnam’s Nghi Son oil refinery, the largestever project financing in the country.

But ask Magennis how he managed to build a career in Vietnam as a foreign lawyer, and he will tell you it happened organically.

“These things just evolve,” he says.

like a state secret; that you couldn’t get it, and what you could get in English wasn’t particularly well-written. He wanted to know what we could do, and on the spur of the moment I said: ‘We’ll translate it for you’. His response was: ‘Prepare the contract’.”

Following the signing of a 10-year laws translation contract in the course of the Neal Blewett Trade Mission in November 1991, Magennis would publish a number of volumes demystifying Vietnam’s legal system for foreign investors, quickly making him the go-to expert for international companies looking at the jurisdiction.

“In many transactions over 23 years the parties have started from different perspectives and understanding and objectives, and the role of the lawyer has included getting all parties to understand each other” After returning to Melbourne in 1989, Magennis was Phillips Fox’s chairman of partners from 1991 to 1992, and was called on to manage some of the very high-profile litigation that followed the epic collapse of Tricontinental Bank.

“I first visited Vietnam in May of 1991,” he says, “and I could see that it was going to be a China story all over again.”

Together with Vietnamese lawyer Nguyen Tan Hai, Phillips Fox began to introduce itself to Australian companies interested in Vietnam. But it was during one of many visits to the country that Magennis was put on the spot by a Vietnamese minister, who complained that foreign investors did not think Vietnam had any laws.

“I told him we had been touring the ministries, and that some treated the law

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The Nghi Son oil refinery deal is an example of Magennis’ deep knowledge of these laws, and of how it still takes an expert like him to navigate them. At the time of the landmark transaction, Magennis and his team at Allens – which included fellow lead partner Hop Dang – were in completely new territory, saying all parties had learned how “very complex” it was to pull off such a major project financing in Vietnam.

“The process we have been through together is a reality check for proponents of major projects who assume availability of mega financing,” Magennis said at the time. “However, despite the challenges, we now know such loans are possible, and are confident the process can be repeated in the near term for projects that are necessary for the development of Vietnam,” he said.

Law of the land Vietnam is a hybrid civil and communist system, making the entire context for cross-border transactions very different from Australia’s common law system. For example, one element often misunderstood overseas is the effect of Vietnam’s ‘governing law’, and the resultant need for any disputes to go to international arbitration.

“In Australia, the whole thing is documented against the background of law enforced by the Supreme Court or the Federal Court. You don’t want to go to those places, but from time to time one does, and you ought to know what the result will be or at least what the parameters are for determining a result,” Magennis explains.

“Here we are not allowed to appear in court and we wouldn’t really want to. It’s not a court system like we know in Australia, so everything is directed towards arbitration.”

Even arbitration – which is usually designated for Singapore in contracts involving Vietnam – is something best avoided by all parties. “You are really planning not to have a dispute at all because it takes too long and is too hard to solve.”

Cross-border transactions in Vietnam are also at the very least bicultural and bilingual, and are increasingly becoming multicultural. In the case of the Nghi Son refinery, Allens advised Vietnamese, Japanese and Kuwaiti clients.

This brings new facets to the role of a foreign lawyer. “In many transactions over 23 years the parties have started from different perspectives and understanding and objectives, and the role of the lawyer has included getting all parties to understand each other. In Australia, the cultural aspects of transactions are changing due to Chinese investment, but they are still predominantly monocultural and monolingual, and the expectations of all parties are aligned,” Magennis says.

However, this doesn’t mean everything differs between Australia and Vietnam. “The

biggest current issue is seeking to secure protection against change in law – the same issue as the press reported on with the East West Link in Victoria.”

People and practice Allens in Hanoi primarily handles oil and gas and infrastructure work, while its Ho Chi Minh office is more M&A and financefocused. The firm plans on continued growth in the booming jurisdiction. “The goal is to keep the practice stable and growing by finding and training the best legal minds available,” Magennis says.

Aside from the Nghi Son project, over the years Magennis has led teams advising BP on the 371km Nam Con Son gas pipeline; Holcim on various cement plants; and PetroVietnam on its Dung Quat refinery – Vietnam’s first. He has also acted on landmark M&A deals for Commonwealth Bank, PepsiCo, the China Investment Corporation, TPG, and Vietnam’s FPT Group, among others.

However, Magennis’ real passion comes from developing the lawyers he works with.

For example, while at Phillips Fox he hired and became a mentor to local Vietnamese linguistics graduate Hop Dang in 1994,

parents, and went on to study at Moscow State University. Magennis’ pride in her is clear when he talks about her ability to speak three languages with her clients around the boardroom table, and her achievement in

“The younger lawyers are bottomless pits of dedication and enthusiasm and I want to see as many as possible get to the top before I hang up my boots” securing him a scholarship through the firm to study common law at Bond University in Australia. Dang went on to become an associate to Victorian Court of Appeal judge Alex Chernov, and gained a doctorate in contract law from Oxford. He is now a highly successful Allens partner in Vietnam, one of four in the jurisdiction.

Likewise, Linh Bui grew up with a background in Russian trade thanks to her

becoming Allens’ youngest partner in 2014.

“You just don’t get that in a monocultural and monolingual environment,” Magennis says. “So why do I stay on now at 64? I am very interested in the people, in training them up and seeing where they can get to. The younger lawyers we have here are bottomless pits of dedication and enthusiasm and I want to see as many as possible get to the top before I hang up my boots,” he says.

LEARNING THE LANGUAGE Vietnam has been open to foreign law firms and lawyers since the country embraced foreign investment in the early 1990s, just before Magennis arrived.

“The market started with at one point in the early years 21 foreign firms,” he says.

While at least half a dozen early starters remain, Magennis is the only Australian stalwart among that original group of senior lawyers still in the country.

“While we all run foreign firms, over time wholly local firms like Vilaf, YKVN and others such as LNT have become prominent also,” he says.

Magennis has never learned Vietnamese to the level required to conduct legal transactions – though he has set about trying to learn three or four times. He is in the minority, with only two monolingual lawyers in Allens’ current 26-lawyer team.

“The usefulness of relevantly monolingual people like me is still there but abating especially in M&A where so much negotiation is now solely in Vietnamese.”

Magennis suggests there is a “serious opportunity” for senior foreign lawyers fluent in both Vietnamese and English to make their mark in the jurisdiction.

“There is a bit of a current gap between the numerous and brilliant rising Vietnamese young stars, and current needs on complex transactions. Naturally this will mostly mean lawyers with Vietnamese heritage,” he says.

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FEATURES

CONSTRUCTION & INFRASTRUCTURE

ROAD AND RAIL A pipeline of new transport infrastructure projects will heavily influence Australia’s future productivity, and provide work for law firms after the mining and resources boom. Ben Abbott speaks to the lawyers responsible for delivering them LESS THAN a month after becoming prime minister, Malcolm Turnbull scheduled a visit to Queensland to commit $95m to Stage 2 of the Gold Coast Light Rail.

Reversing a decision by his predecessor Tony Abbott, the announcement has ensured that Brisbane will be ready for the 2018 Commonwealth Games – and sent a clear signal that the Turnbull Government will link itself politically to new infrastructure projects.

This was welcome news around the boardroom tables of top-tier law firms. With the end of the mega-project work of the mining and resources boom, firms are having to steer large practices through a step change in front-end construction work.

“The biggest change in the market over the last 18 months to two years has been the resources projects tailing off, and infrastructure – particularly public infrastructure – taking its place,” Herbert Smith Freehills partner David Templeman explains.

This new infrastructure is both hoped for and needed by top-tier firms. The good news is that – thanks to the ability of state governments to get new infrastructure projects up and running – their large and expert practices are still very much in demand.

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“While the dollar value may have fallen – for example, you might have a $10bn resources project replaced by a $2bn roads project – it doesn’t make that much of a difference in terms of the legal resources required,” Templeman says. “You need the same number of lawyers, and there is the same level of complexity.”

Pipeline politics Ask lawyers how they rate the state of the construction and infrastructure market, and they will all tell you the same thing. It depends on where in Australia you are.

The Gold Coast Light Rail go-ahead injected some momentum into Queensland’s infrastructure agenda, which had stalled after former premier Campbell Newman failed to convince the electorate to back his plan for port and power asset sales.

However, with Labor now reviewing infrastructure

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FEATURES

CONSTRUCTION & INFRASTRUCTURE

“While the dollar value may have fallen – for example, you might have a $10bn resources project replaced by a $2bn roads project – it doesn’t make that much of a difference in terms of the legal resources required” David Templeman, HERBERT SMITH FREEHILLS plans, firms have little else in Brisbane to go on, except for a decision to abandon a Bus and Train Tunnel project favoured by the LNP in favour of another look at the longawaited $5bn Cross River Rail, which would create a tunnel under Brisbane River and two new stations.

Clayton Utz is currently advising the government on the $1.6bn Toowoomba Second Range Crossing, a project that was underway before the election, while Adani’s controversial Carmichael mine has been approved again after a legal challenge.

The Victorian Government’s cancellation of the $15bn East-West Link after contracts had been signed has been universally labelled a ‘debacle’ by infrastructure lawyers, who believe the results of the backflip have been negative for the industry.

But other projects have taken its place.

Herbert Smith Freehills is advising the government on the $9–$11bn Melbourne Metro Rail Project, which will relieve rail congestion in the city and provide a number of bidding roles for law firms.

In addition, the scrapping of an existing unsolicited proposal to upgrade the rail corridor between Cranbourne and Pakenham has been replaced by a ‘bigger and better’ project, which includes a rolling stock PPP for 37 new high-capacity trains and the removal of nine level rail crossings, on which Clayton Utz is advising the government.

A new Transurban proposal for a $5.5bn Western Distributor is being considered.

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NSW is really the guiding light for law firms, thanks to Premier Mike Baird.

“Things are very strong for public infrastructure in NSW,” says Clayton Utz partner Owen Hayford. “We are very fortunate Mike Baird was able to get re-elected on his platform of privatising electricity distribution assets – or the poles and wires – on the basis that funding would be reinvested back into new infrastructure.”

Lawyers in Sydney are working on the $15bn WestConnex, the Sydney Light Rail

3 TRENDS CHANGING INFRASTRUCTURE DELIVERY Lawyers need to be at the cutting edge of innovation when it comes to infrastructure projects. Clayton Utz partner Owen Hayford has seen a number of trends changing the front end FLEXIBLE PROCUREMENT Governments are evolving procurement for new infrastructure projects by ‘slicing and dicing’ projects up into separate contracts for different packages. The Sydney Metro North West Rail Link, for example, included three different contracts: Tunnels and Civil Works, Surface and Viaduct, and Civil Works and Operations, Trains and Systems. It is a model being followed by the Victorian Government on the $11bn Melbourne Metro project. “Governments are tendering and building these assets under separate publicly funded design and construct contracts and then separately tendering and outsourcing the provision of the services required under a separate operating agreement,” Hayford says.

DELIVERY PARTNER MODEL Pioneered during construction for the 2012 London Olympics, a ‘delivery partner model’ is being looked at more regularly in Australia.

The model was used here for the first time by Roads and Maritime Services (RMS) on the 155km Woolgoolga to Ballina Pacific Highway upgrade, and Hayford said Clayton Utz – which advised RMS – has been seeing more interest in it on subsequent projects. The delivery partner model facilitates contractor involvement in scoping and design at an early stage (rather than afterwards), and outsources more responsibility and risk to the primary project partner responsible for delivering the project.

UNSOLICITED PROPOSALS State governments now have positive experiences with unsolicited proposals to guide them in the future, after the completion of a number of deals under a process that seeks to encourage innovative infrastructure proposals from the private sector. Sydney’s NorthConnex tunnel and Melbourne’s CityLink widening were both unsolicited proposals from Transurban, financed through extensions to the company’s existing toll road concessions.

in the CBD, and the Sydney Metro. Ashurst, which had roles for the state government on all three projects, calls NSW “the place to be” for infrastructure lawyers.

Other projects include the NorthConnex tunnel, the Moorebank Intermodal freight hub, on which Herbert Smith Freehills advised, as well as the new Northern Beaches Hospital. Firms are also already talking about the new Badgerys Creek airport.

While WA is now trailing the eastern states in the area of large-scale front-end infrastructure work, there are some projects – like Perth’s airport link – that are filling the future pipeline. However, firms expect there will be more disputes work out of Perth.

“A number of our partners have been involved for some time in Brisbane and Perth, working with clients in respect of ongoing claims and preparing for future claims on a number of oil and gas projects,” says Ashurst partner Gareth Sage. “While it is still a little bit below the radar, there may be a surge of disputes work in oil and gas.”

Safe at the top Top-tier infrastructure construction practices seem quite comfortable with their positions.

Lawyers say that, if anything, the top tier is becoming more entrenched, with the deepest practices drawing away from boutiques and mid-tiers.

“It’s become a considerably more competitive market in the last few years, given the combination of some new entrants and increased pressure on pricing,” Templeman says. “But some new entrants actually have relatively small offices, so while they are doing good work at a boutique level, the projects we act on need a big team – so for us it’s still the same half-dozen firms we’ve been competing with for quite a while.”

For example, Clayton Utz can field 24 partners in the construction and major projects area, or nearly 100 lawyers. “That means we can handle a lot of big projects in parallel, even in the same office,” Hayford says. In Victoria, the firm closed the East-

West Link while advising on the unsolicited Cranbourne to Pakenham proposal.

Ashurst is finding that its international expertise has been a ‘game changer’ for clients, particularly in NSW, where the firm has a unique combination of key partners Lee McDonald, David Jardine and Harvey Weaver across Sydney and Melbourne, as well as Gareth Sage and finance-focused Angus Foley, who moved across from Clayton Utz. “It has always been a goal to build up an infrastructure team like we have now, but to

Hayford says they have caught on in a big way over the last couple of years.

“We are seeing a lot more requests for secondments. They like our lawyers working very closely with them, and it provides a great opportunity for us and our lawyers to really understand the clients, projects and businesses and what the real issues are, so we can tailor our solutions and best fit the situations they find themselves in.”

Clients are also more comfortable instructing teams not in their own cities.

“We are very fortunate [Premier] Mike Baird was able to get re-elected on his platform of privatising electricity distribution assets – or the poles and wires – on the basis that funding would be reinvested back into new infrastructure” Owen Hayford, CLAYTON UTZ be honest it happened a bit quicker than we expected,” says Harvey Weaver. “This is the type of team you need for these kinds of deals, and it is a virtuous circle – if you get the big deals and expand your team, you are set up for the next big deal that comes around.”

The team has expanded by 13 lawyers in the last 12 months.

These firms are fortunate to have the high-value and complex work they need to keep practices going. The lower-value work is finding a home elsewhere.

“The contractors are largely doing a lot in-house, or outsourcing to firms at a lower charge-out rate, because they don’t see the value on run-of-the-mill construction contracts,” Hayford says. “Our focus is bespoke, novel, high-end and significant matters.”

Firms note that secondments have become popular among clients in the sector;

“Our experience is that, in terms of private sector roles, they are often resourced by teams not based in Sydney – there is an acceptance from clients that as long as you have the best team, it can be resourced from anywhere,” Ashurst’s Gareth Sage says.

This is more pragmatic, with firms unable to uproot entire teams and move them between cities. It also helps keep lawyers engaged in slower states; for example, Herbert Smith Freehills has WA lawyers working on Asian energy projects.

“That has been one of the advantages of the Herbert Smith merger,” Templeman says. “The firm has a big footprint in Asia, and we use Australian lawyers to do a lot of support work up there without physically moving people; for example, we are doing a lot of renewables projects in the Philippines, including hydro, wind and geothermal.

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New Zealand: Increased payment protections for subcontractors Subcontractors stand to benefit from key developments in New Zealand’s construction and insolvency laws. At the start of the year, New Zealand’s highest appellate court increased the scope for subcontractors to withstand claims by liquidators clawing back insolvent payments.

More recently, the Government passed legislation intending to reduce the risk to subcontractors from the use of retentions.

THE “GOOD FAITH” DEFENCE TO A VOIDABLE TRANSACTION CLAIM Liquidators have the ability, in certain circumstances, to claw back payments made by a company within two years prior to liquidation, as voidable transactions.

Recipients of payments may however have a “good faith” defence if they acted in good faith, did not have reasonable grounds to suspect insolvency, and “gave value” for the payment. There had been uncertainty to whether subcontractors who provided one-off supplies on credit “gave value” for payments they later received by instalments.

The Supreme Court resolved this uncertainty in favour of the subcontractors - holding that “value” can include value given in the original supply of goods or services when the debt was initially incurred.

PERCEIVED PROBLEMS WITH RETENTIONS While the Supreme Court’s decision makes it easier for some subcontractors to keep payments received after the insolvency of a counterparty, where a subcontractor is owed retentions by an insolvent counterparty they

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may not be paid at all. Retentions are commonly used in New Zealand (notably in contracts following the NZS3910 form) to secure performance by subcontractors, typically being retained until the end of the defects liability period. This practice has allowed payers to use retentions as working capital, and has meant that the party owed the retention bears the risk of the payer’s insolvency.

THE TRUST CONCEPT Under amendments to New Zealand’s Construction Contracts Act passed in October 2015, any party to a construction contract holding retention money (above a minimum amount) will be required to hold the retentions on trust.

Taking the example of retentions due by a head contractor to a subcontractor, the head contractor will hold the retentions on trust for the benefit of the subcontractor. The trust ends when the money is paid to the subcontractor, the subcontractor agrees in writing to give up any claim to the money, or the money ceases to be payable to the subcontractor either under the construction

contract or otherwise by operation of law.

Until the trust ends, the head contractor can only use retentions to remedy defects in the performance of the subcontractor’s obligations under the contract. The same rules will apply to retentions held by any other party to a construction contract, from an amount payable to another party to the contract as security for the performance of obligations of that other party under the contract.

The requirement to hold retentions on trust is just one part of wide-ranging reforms to New Zealand’s “pay now, argue later” construction contracts regime.

KEY ISSUES AHEAD Despite these developments, subcontractors cannot of course afford to be complacent about insolvency risks. In particular, a working understanding of how the voidable transaction regime, and the “good faith” defence might apply is important to all companies working in New Zealand. We expect that liquidators may now focus on whether subcontractors suspected, or ought to have suspected, insolvency at the time of payment and whether the value they gave was “substantial”.

As to the new retentions regime, we expect key questions in the event of the insolvency of party holding retentions will be whether the trust has in fact been put into place, both where money has been received or where it is yet to be paid, and whether there are potential other claims by secured or preferential creditors (or insolvency practitioners themselves) to the same funds if they have not been separately held.

To discuss these issues in more detail, please contact

POLLY POPE partner at Russell McVeagh is a commercial litigator with particular interests in financial, insolvency and construction disputes. polly.pope@russellmcveagh.com

MATT KERSEY partner at Russell McVeagh specialises in insolvency, restructuring and finance litigation. matt.kersey@russellmcveagh.com

2016

SAVE THE DATE

Thursday 19 May 2016 | The Star Sydney www.auslawawards.com.au

FEATURES

CORPORATE WELLNESS

HEALTHY BODY + HEALTHY MIND = HEALTHY CAREER Our bodies are finely tuned machines, yet we tend to drive them into the ground, ignore warning signs, and generally treat them poorly. What if HR could tap into a whole workforce of finely tuned, healthy and active employees? Christopher Paterson reports IN TRUTH, most of us do not fully understand the intricate design of our brains and bodies and, as a result, we are operating at a fraction of our full capacity.

Further, what you may not realise is how this may be holding you back in terms of your career and life success. Multiply this across an entire organisation and the gap between current performance and potential performance widens exponentially.

Neurological, biological and psychological data shows us that we have prioritised our

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workloads and our success far above our mental and physical wellness. As a result, we have become disconnected from the fundamentals of how the human body functions. This is having an impact on our ability to solve complex problems, come up with new ideas, and push the boundaries of our capability. It is not surprising that it is also inflating our levels of stress and anxiety.

While we all have access to a very impressive machine in the form of the

human brain and body, it’s extremely finetuned. What happens to a finely tuned machine when we put it under sustained pressure? Performance suffers and it breaks down. You’ll see these breakdown signs among your friends and family, your colleagues and staff, and you’ll also see the signs within yourself. While we see the signs, we don’t know a different way, so we keep doing the same things. We do our best and hope things will improve.

However, taking time to understand the fundamentals of how we are designed has now become a critical sustainability issue. Changing the way we do things, and working with, rather than against, our body will ultimately allow you to be at your best both in and out of the office.

Career outcomes Our review of the published research shows that individuals who work with this knowledge experience lower stress levels,

TOP TIPS FOR BUSINESS 99 Identify ‘wellness champions’ in senior roles 99 Promote positive wellness behaviours with targeted, evidence-based workshops 99 Track wellness factors throughout the year to assess risks and celebrate success 99 Train team leaders to promote and facilitate wellness across their teams 99 Have an integrated corporate wellness plan and measure its effectiveness 99 Have fun with it! ‘pressure’ instead. This research proves that a certain amount of pressure enhances performance to the point that is our sweet spot of optimal performance. However, when additional pressure is applied, this creates stress and our performance decreases. Unfortunately, this is the reality of the modern workplace: 73% of working Australians are operating within this zone.

Neurological, biological and psychological data shows us that we have prioritised our workloads and our success far above our mental and physical wellness greater mental alertness, more energy, higher self-esteem, better memory, greater work fulfilment, less workload pressure and greater concentration.

Not surprisingly, this facilitates improved job output, increased creativity, and greater overall career success. On an organisational level, imagine a whole workforce of these individuals! This is organisational performance and capability redefined and adds a unique dimension to a company’s market differentiation.

Performance and arousal While the Yerkes-Dodson law shows the correlation between ‘performance’ and ‘arousal’, we try not to use the word arousal too much in the workplace, so let’s call this

Therefore, our first task is to identify the triggers that are creating this additional pressure, and our next task is to have specific strategies on hand to manage them effectively.

It’s not always possible to remove them, but with a better understanding of our neurological and biological toolkit we can get back to our sweet spot of optimal performance.

Wellness toolkit The good news is that the research also highlights the mistakes we’re making and identifies the specific things we can do to be at our best. This data points to the following three key elements of wellness that all play a role in our work and life success.

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FEATURES

CORPORATE WELLNESS TOP 10 TIPS FOR INDIVIDUALS 99 Get a complete body diagnostic from an integrative doctor to understand your nutritional needs 99 Get moving every 45 minutes 99 Connect with positive people face-to-face 99 Book a mini break away 99 Remove smart technology from the bedroom and replace it with a good alarm clock (no snooze) 99 Wake up at the same time each morning and get your body to some natural light 99 Find that hobby that allows you to unplug and unwind 99 Share your plan with someone 99 The more stressed you are, the MORE you do these things, not less 99 Set a reminder to review your plan once a week for six weeks

Cognitive wellness – our brain@work Understanding our brain functionality, particularly the prefrontal cortex (PFC), allows us to unlock the full potential of our cognition. Unfortunately, we currently tire our brain out with low-level tasks and are left wanting when we need to switch into higherorder analysis or creativity. In addition, the multitasking way in which we attempt to work creates unnecessary pressure for the poor old PFC and we fail to produce our best thinking.

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Emotional wellness – our limbic system@work While still in the brain, our limbic system is the centre for all our emotional responses, even mild ones. So every time we’re a little bit worried, stressed or feeling under pressure, this powerful system gets quickly activated and absorbs all of the cognitive energy, decreasing the quality of our thinking and pushing us beyond our sweet spot.

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Six cylinders of wellness In a 2009 review of our career transition

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clients, we observed that there were two types of people being coached through career change.

While both had equivalent levels of intelligence, experience and capability, Group A would navigate change with confidence, resilience and focus while Group B struggled to adapt, took a lot longer to bounce back from setbacks, and experienced higher levels of stress and anxiety.

A closer investigation of the factors at play, cross checked with the research, revealed that Group A were simply making better decisions in six key areas of their lives.

We call them the six cylinders of wellness and they are: Nutrition, Social Connections, Activity, Time Out, Sleep and Outlets.

Last year, we tested a workshop program that educated staff on three of these wellness elements, including the six cylinders. This enabled them to identify the areas that required attention and the specific, practical actions that they could take to facilitate a stronger wellness profile. We found that by making small adjustments staff were able to reduce their stress levels by 8% and their workload pressure by 16%, while also increasing their focus and concentration by 5%.

Business case We support staff because it’s the right thing to do, and in an environment where workplace stress and anxiety are on the rise, a focus on wellness is key. Alongside the humanistic argument, the data shows that a well organisation will be more productive and creative, with staff who are less stressed, more mentally alert, energetic, fulfilled, focused and successful.

A 2014 study showed that while the cost to Australian businesses of mental health conditions alone was $11bn, the ROI for promoting a mentally healthy workplace was $2.30 for every $1 invested (PwC, beyondblue, National Mental Health Commission).

THE BUSINESS CASE IN NUMBERS

73% Australians reporting that stress is having some impact

47% Working Australians reporting that the workplace is a source of stress

$11bn Impact of mental health conditions on Australian workplaces

SIX CYLINDER STATISTICS

65% – the drop in fatigue by those who do 20 minutes of low-intensity activity a day

0.1% – the blood alcohol level equivalent resulting from fatigue in Australian workplaces causing accidents

50% – the drop in heart attack risk for those who regularly take holidays

30 – the number of chews required to get the maximum nutrients out of each bite

15% – the increase in your happiness probability as a result of having happy friends

95% of people use brain-activating ‘blue screen’ emitting technology within one hour of bed

7 years – the reduction in life expectancy from sitting for more than six hours per day

$2.30 ROI for every $1 spent effectively promoting a mentally healthy workplace Take action On a personal level you will be more successful if you manage your own wellness.

On an organisational level, your business will more successful if you can facilitate enhanced wellness profiles for your staff.

The pressures that are currently holding you and your staff back are not likely to go away, so inaction is not an option.

Christopher Paterson is the managing director of ALCHEMY Career Management, a firm that supports individuals to transition their career; assists companies adapting to organisational change; and delivers Wellness@Work programs for any organisation wanting to help staff to be at their best. For more information, visit alchemycm.com.au/.

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