Australasian Lawyer 1.01

AUSTRALASIANLAWYER.COM.AU

18 HOT COVER STORY

Australasian Lawyer profiles the legal talent changing the industry now

40

14

FEATURE

34

BRISBANE SPECIAL REPORT

FEATURES 30 | Darwin’s law DLA Piper managing partner Andrew Darwin talks firm survival strategies

A mad life in Myanmar Aussie Chris Hughes talks about his life of adventure leading his firm’s Myanmar office

34 | Back to black in Brisbane Economic conditions have put the city back on the radar for firms 40 | D&O insurance’s future Top insurance lawyers explain the industry’s turbulent ups and downs 44 | In-house counsel at resource companies Santos’ Christian Paech discusses life after the mining boom

REGULARS

48 | The postgraduate revolution New approaches are transforming the way lawyers study

06 | Deals 08 | Insight 10 | News analysis 12 | Appointments

56 | What general counsels want Key factors driving in-house counsel’s external spend

MAY 2014 | 1

EDITOR’S LETTER / 1.1

THERE’S A NEW LAW IN TOWN

Aidan Devine

Every lawyer knows that feeling and hates it. It happens when you look outside and a world of fun possibilities beckons, except you can’t answer. You have work to do. And not just a little: a workload bigger than Justin Bieber’s brat ego has your name on it and you’re not even close to finished.

It just shows. People say a lot of things about lawyers. They joke about how the only difference between a lawyer and a liar is the pronunciation, or how you save a drowning lawyer by “taking your foot off his head”, but when they need a professional to count on, to see them through critical issues, there’s no one who works harder and pitches in more work.

It’s for this reason that Australasian Lawyer believes some patting on backs is required. Not every lawyer does what they do expecting recognition or applause, but this issue we’re giving it in spades.

It’s thus with great pleasure that we present our Hot 40 feature: a look at Australia and New Zealand’s exciting legal talent. These are some of the lawyers who have been headlining significant deals, fighting for charitable causes and fronting landmark transactions.

The listing starts on page 18.

On the topic of excitement, this issue we also profile Australian lawyer Chris Hughes (page 14), who left a budding career in Sydney to lead the establishment of an international law firm’s offices in Myanmar.

Hughes’ sense of adventure touches on an undeniable part of human nature: we like new things. No one, accountants excluded, has ever collapsed onto their couch, sobbing about how life isn’t throwing them enough of the humdrum routine they’ve had the last 15 years. We prefer novelty. New things excite us. And that is what we hope readers feel when picking up this, the first issue of Australasian Lawyer.

The magazine is a new addition to Australia’s legal industry, positioning itself as the first word on major developments in the profession. The title has considerable resources to do so, backed by the Key Media Group, a global diversified media company that has published legal titles, among others, in markets all around the world.

There is plenty more great content in this edition. Enjoy the read!

COPY & FEATURES EDITOR Aidan Devine CONTRIBUTORS Renu Prasad, Ben Abbott, Mackenzie McCarty PRODUCTION EDITORS Roslyn Meredith, Moira Daniels

ART & PRODUCTION DESIGNER Jonathan Phillips

SALES & MARKETING SALES MANAGER Paul Ferris MARKETING EXECUTIVE Alex Carr TRAFFIC MANAGER Abby Cayanan

CORPORATE CHIEF EXECUTIVE OFFICER Mike Shipley CHIEF OPERATING OFFICER George Walmsley MANAGING DIRECTOR Justin Kennedy CHIEF INFORMATION OFFICER Colin Chan HR MANAGER Julia Bookallil Editorial enquiries Aidan Devine tel: +61 2 8437 4719 aidan.devine@keymedia.com.au Advertising enquiries Paul Ferris tel: +61 2 8437 4703 paul.ferris@keymedia.com.au Subscriptions subscriptions@keymedia.com.au Key Media keymedia.com.au Key Media Pty Ltd, regional head office, Level 10, 1–9 Chandos St, St Leonards, NSW 2065 Australia tel: +61 2 8437 4700 fax: +61 2 9439 4599 Offices in Auckland, Toronto, Denver, Manila australasianlawyer.com.au Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Australasian Lawyer magazine can accept no responsibility for loss

Aidan Devine, editor, Australasian Lawyer

CONNECT

Contact the editor:

aidan.devine@keymedia.com.au

2 | MAY 2014

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GLOBAL M&A TRENDS

GLOBAL M&A TRENDS The total value of first quarter Global M&A transactions in 2014 has marked a significant improvement on 2013 M&A activity, according to an international researcher.

The research showed that the total value of first quarter M&A was US$599.1bn, a 33.2% increase on the first quarter of 2013 (US$449.6bn).

This also represented the most active start to the year since 2011, when US$613.5bn in M&A first quarter transactions occurred.

The research was revealed in Mergermarket’s M&A trend report: Q1 2014, which also showed that first quarter global M&A activity increased 5.7% on the fourth quarter of 2013.

The Mergermarket report also indicated that eight megadeals, transactions above US$10bn, were recorded in the first quarter – the most seen in any quarter since the 13 announced in Q1 2006.

The mega-deals accounted for just over a quarter of the total value of global M&A transactions.

Another important identified trend is an increase in the average deal size. The first quarter of 2014 saw the highest average deal size (US$374.4m) since 2009 and this was also a third higher than the average size of 2013 first quarter deals.

Global M&As by sector 13.8%

Outer ring = 2014 Inner ring = 2013

23% 25.3%

12.7%

10.6%

24% 9.6%

14.5%

10.5% 3.2%

9.5%

16.9%  Energy mining and utilities  Industrials and chemicals  Pharma, medical and biotech  Technology

7.8% 6.1%

9.1%

3.5%

 Media  Telecommunications  Consumer  Other

First quarter global M&A activity 2014 vs 2013

EUROPE USA

352.7%

ASIA-PACIFIC (excl. Japan)

Global M&A value: $599.1bn 32.2% Domestic: $343.7bn

19.2%

16%

36.3%

Lead sector: Real Estate ($19.7bn)

Cross-border: $255.3bn 66.7% Lead-sector: telecommunications ($101.bn)

4 | MAY 2014

Source: Mergermarket Q1 2014 trend report

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5 | APRIL 2014

NEWS / DEALS

Deals round-up +$1.2bn Capital markets PNG government investment in Oil Search Norton Rose Fulbright advised the Papua New Guinea government on its purchase of roughly 150 million shares in Oil Search Ltd – worth $1.24bn.

The purchase is part of government plans to develop the PNG LNG project, which is expected to deliver its first gas later this year.

Norton’s team was led by partner Anthony Latimer.

$530m M&A Warrnambool Cheese & Butter (WCB) takeover WCB attracted interest from Saputo, Murray Goulburn and Bega Cheese, but WCB’s directors preferred Saputo’s offer. Bega Cheese and Murray Goulburn (who had a combined stake in WCB of over 36%) accepted Saputo’s offer.

Tim Watkin led the Minter team, while Maddocks and North American firm Stikeman Elliott acted for Montrealbased Saputo. Addisons represented its long-term client Bega Cheese. Herbert Smith Freehills advised Murray Goulburn.

Transaction

Value (A$)

Adviser

Client

Lead lawyer(s)

PNG Gov. investment in Oil Search Ltd

$1.2bn

Norton Rose Fulbright

Papua New Guinea Government

Anthony Latimer

LDC acquisition of stake in Bluestone (Aus aspects)

$120m

Addisons

Bluestone

Jeff Mansfield

Sunsuper acquisition of majority share in Discovery Holiday Parks

Undisclosed

Minter Ellison

Next Capital, Allegro Funds, Macquarie Funds

Callen O’Brien

Sunsuper acquisition of majority share in Discovery Holiday Parks

Undisclosed

Allens

Sunsuper

Lisa Simmons

Agribusiness group sale of remaining shares in Emerald Grain

Undisclosed

Herbert Smith Freehills

Emerald Agribusiness Group

Richard Loveridge

Agribusiness group sale of remaining shares in Emerald Grain

Undisclosed

Maddocks

Sumitomo Corporation

Ron Smooker

Challenger acquisition of Bendzulla Actuarial

$25m

Laity Morrow

Bendzulla Actuarial

Kerry Morrow

Challenger acquisition of Bendzulla Actuarial

$25m

Arnold Bloch Leibler

Challenger

Andrew Silberberg

Reece acquisition of Actrol Parts Holdings Ltd

$280m

Lander & Rogers

Reece Australia Ltd

Jackie Solakovski

Reece acquisition of Actrol Parts Holdings Ltd

$280m

Allens

Catalyst Investment Managers

Mark Malinas

Saputo takeover of Warrnambool dairy factory

$530m

Minter Ellison

Warnambool Cheese Tim Watkin, and Butter Alberto Colla

Saputo takeover of Warrnambool dairy factory

$530m

Maddocks

Saputo Inc

ASX listing of agricultural funds

$120m

McCullough Robertson

Rural Funds Group

Sean Robertson

Baker & McKenzie

Australia Samly Holdings Group Ltd

Bill Fuggle

Australia Samly Holdings Group n/a listing on APX

6 | MAY 2014

AUSTRALASIANLAWYER.COM.AU

DEALS REPORTED TO AUSTRALASIAN LAWYER Has the magazine missed an important deal?

Help Australasian Lawyer keep this information current by emailing the editor: aidan.devine@keymedia.com.au

Lead lawyer(s)

Transaction

Value (A$)

Adviser

Client

Zhonghuan listing on APX

n/a

Baker & McKenzie

ZhongHuanYun Holdings Group Ltd

Bill Fuggle

GIC, Macquarie Capital acquisition of majority interest in Iglu

Undisclosed

Allens

GIC

Nicholas Cowie, Penny Nikoloudis

GIC, Macquarie Capital acquisition of majority interest in Iglu

Undisclosed

Beacon Lighting IPO

$142m Capital markets

King & Wood Mallesons

Macquarie Capital

$142m

Baker & McKenzie

Beacon Lighting

Richard Lustig

Elan Pharma acquisition of Aspen Pharmacare (Australia) brands

US$51m

King & Wood Mallesons

Aspen Pharmacare

Ros Anderson

Elan Pharma acquisition of Aspen Pharmacare (Australia) brands

US$51m

Minter Ellison

Perrigo Company

Leigh Brown

Investa purchase of 50% share in Sydney’s Piccadilly Centre

$194m

DLA Piper

Investa Property Group

Les Koltai

Investa purchase of 50% share in Sydney’s Piccadilly Centre

$194m

Lander & Rogers

Stockland

John Wells

LDC acquisition of stake in Bluestone (Aus aspects)

$120m

Allens

LDC

Oil Search purchase of 23% US$900m stake in Elk/Antelope gas fields (PNG)

King & Wood Mallesons

Oil Search

Adrian Perkins

Commonwealth Bank exit from property asset management platform

$3.47bn

Herbert Smith Freehills

Commonwealth Bank of Australia

Tony Damian

Peninsula Link freeway refinancing

$745m

King & Wood Mallesons

Southern Way

Jeff Clark

Beacon Lighting IPO Beacon Lighting sought to raise just shy of $142m by listing on the ASX, following a string of other IPOs that occurred in the first quarter of the year.

Richard Lustig, a Melbourne-based partner, led the Baker & McKenzie team, with assistance from Sydney-based partner Frank Castiglia.

$3.47bn Corporate CBA exit from property asset management platform Herbert Smith Freehills advised Commonwealth Bank of Australia on its exit from its property funds management and property asset management platform.

The platform provided management services to three listed trusts with over $20bn in property assets under management.

The exit involved the separation of four distinct and well-established businesses from the CBA Group and transitioning each of these to new owners.

Other firms involved included Ashurst, King & Wood Mallesons, Russell McVeagh and Simpson Grierson.

MAY 2014 | 7

LEGAL INSIGHT

PARTNER MOVES EXPLAINED

An international lateral partner survey reveals the push and pull factors driving partners from one firm to another – and it’s not only about money The Lateral Partner Satisfaction Survey, conducted by US recruiter Major, Lindsey & Africa, was sent to over 57,000 partners across the US and other countries.

It shows 'firm culture' as the main driving force behind partner decisions to move to a different firm. The survey also suggests the vast majority of partners who jump ship have no regrets. More than 80% indicated they would still move to their current firm if they had to do it all again.

Despite this, the survey indicates that firm culture remains the largest problem that partners have to wrestle with.

Greg Williams of recruitment firm One Practice believes demand for partners and other senior lawyers in Australia is currently at unprecedented levels, with lateral moves from top to mid-tier firms still featuring prominently.

“Top tier firms have been losing people for some time, particularly partners in their 40s who have given up their family lives to service a firm,” Williams said.

DISSATISFACTION WITH MOVE Women

● PUSH: Most common reasons partners leave firms Issue for % of partners

42%

Firm culture

14%

33%

26%

Compensation

Firm’s financial health

10%

Office locations

Conflicts

● PULL: Top 5 factors in choosing a new firm

Men

17.3%

12% TIME FRAME

The search for a new firm takes most lateral partners less than 3 months

1.

Perception of work environment

2.

Support for practice area

3.

Personality of partners

DID YOU KNOW?  Compensation is only the 6th most important consideration in choosing a new firm  Partners of more than 20 years are the least likely to leave due to compensation  The least significant pull factor: a firm’s international presence

4.

Management style of firm

5.

Strength of firm’s finances

Source: Major, Lindsey & Africa – Lateral Partner Satisfaction Survey 2013

8 | MAY 2014

Firm Profile

THE HAPPY HOUR’S LAST HURRAY? As our summer days shorten and the time for a chilled Rosé gives way to a hearty Cab Sav, you might reflect on the place alcohol plays in your life and its role in our society and economy generally. You can be sure that over the last year or so, perhaps while we have been adjusting our beer–googles, our legislators, regulators and enforcement agencies have been taking a long hard look at our imbibing. They are clearly not amused.

In the last few years New Zealand has, like other Commonwealth jurisdictions such as England and Australia, been doing a lot of soul searching about our drinking.

A particular feature of this latest bout of introspection has been how the ‘problem’ has been largely characterised as an issue solely about our out of control binge drinking youth. The alcohol debate has thus had a paternalistic (and perhaps hypocritical) ‘hell in a handcart’ feel to it.

However, whatever the demographic vehicle for the reboot, the changes introduced by the Sale and Supply of Alcohol Act 2012 (the Act) will affect imbibers young and old. Indeed you may have already started to notice a number of changes when the Act took full effect in December 2013. These include: • The introduction of national default hours for all licensees. Off-licence (including supermarkets) hours are limited to between 7am and 11pm. On-licence hours are limited to between 8am and 4am. Premises open for longer hours now have to comply with the national default, whilst premises with shorter hours continue to operate in accordance with their licence conditions. The days of widespread 24 hour licences are therefore nigh, although many would say that what happens after 4am is hardly likely to be productive.

• Local alcohol policies (LAPs) can be adopted from 18 December 2013.

LAPs are developed by councils and augment the Act’s controls. LAPs can include limits on the location of licences

near particular areas, facilities or other licensed premises, the number and density of licences in an area, and further limits on the maximum trading hours of a licence. These measures will represent a substantial shift from the permissive regime of the old Act, and put power in the hands of local councillors. Territorial authorities choosing to develop LAPs must publicly consult on these. Many councils throughout the country have already consulted on their draft LAPs, and have now started releasing their provisional LAPs. • Restrictions on the location of beer and wine displays in supermarkets (restricted to a single area within the store isolated from other goods), which will be imposed on all supermarket off-licences once they are renewed. Your familiarity with the layout of your supermarket will be tested and you will have to hunt harder for your wine or beer.

• A new offence relating to the irresponsible promotion of alcohol, which effectively prohibits advertisements that promote excessive drinking, promote alcohol in a way that has special appeal to minors, advertises free alcohol or discounts of 25% or more, or offers free goods or services with the purchase of alcohol. Is that the end of the Happy Hour?

• The licensing process will also change with all new licence applications being assessed under the criteria prescribed in the Act. The Alcohol Regulatory and Licensing Authority (ARLA) has also replaced the Liquor Licensing Authority.

While the Act has some immediate bite, the development of LAPs will be a significant step over the next few months. Many of the draft LAPs consulted on by councils have adopted quite strict standards. Many LAPs appear to have been demonstratively influenced by various interest groups. Public health officials and the Police are keen to limit drinking as far as possible. Bar and hotel owners are keen to ensure that people who are drinking are doing so in bars rather

than in the comfort of their own home after visiting a supermarket or bottle store. The LAP process has been notable for some rather bold contentions about alcohol harm and its causes, which seem to rely on very skinny analysis. For example, we are aware of one leading council who has used a study of alcohol harm in respect of a small aborigine community in Australia dreadfully afflicted by alcohol problems, to justify part of their alcohol policies in respect of a large New Zealand city.

The validity of that comparison will presumably be challenged on appeal to ARLA. Another notable feature has been the use, and uncritical acceptance of some terminology. A notable example of this, is use of the concept of ‘preloading’ (the harmful consumption of alcohol bought from an off-licence before going to licensed premises). The idea is being used to beat-up supermarkets and other off-licences.

What this is, who is doing it and what harm it causes is ill-defined but you might want to reflect on the fact that if you have a wine at home before going to dinner or to a bar you are one of this much maligned group.

The appeals to the various LAPs will be fascinating, with the interests of large hospitality interests, supermarkets, councils, the Police and public health entities all heading in varying directions about how, where and when we will be served our poison of choice.

This article was written by Patrick Mulligan (partner) and Leigh Walker (solicitor) – both based in the Auckland office of Buddle Findlay, one of New Zealand’s leading law firms.

Patrick Mulligan Patrick heads the Auckland’s resource management and environmental team and also specialises in licensing matters, and can be contacted on +64 9 357 9396 or patrick.mulligan@buddlefindlay.com.

Leigh Walker Leigh specialises in resource management, local government law and licensing law, and can be contacted on +64 9 356 1390 or leigh.walker@buddlefindlay.com.

www.buddlefindlay.com

NEWS / ANALYSIS

The big M&A cheese A bunfight in the dairy industry has raised hopes of a widespread M&A revival this year.

Renu Prasad investigates Three bidders. One target. Just like the glory days. As the hotly contested battle for control of Warrnambool Cheese and Butter reached a climax in January, dealmakers could have been forgiven for feeling nostalgic. The sight of three heavyweights – in this case Murray Goulburn, Bega Cheese and Canada’s Saputo – going head to head was more evocative of 2008 than the more lean years that followed. The key question: could the battle for Warrnambool be a cheese-themed entrée for more tasty M&A fare this year?

There’s some reason to believe it will be.

As the 2013 calendar year drew to a close, “cautious optimism” was the phrase du jour for M&A lawyers. Confidence seemed to be returning to the M&A market. Mergermarket reported that deal flow, in dollar terms, was 40% up on first-half 2013 levels.

Lawyers were seeing some promising signs of deal activity, but they were anxious to see how the market carried through to 2014 before becoming too optimistic. So how are they feeling now?

CONFIDENCE LEVELS Herbert Smith Freehills partner Tony Damian says certain developments augur well for the 2014 M&A market. One is a greater likelihood of deals proceeding beyond the “tyre kicking” stage.

“Deals have a greater chance of actually happening,” he says. “Twelve months ago there was a lot of consideration of deals and a lot of people on boards thinking of deals, but translating that into announced and completed deals proved to be tricky.

Confidence seems to have returned and people are out there doing things.”

Corporate confidence, as distinct from 10 | MAY 2014

SOE and sovereign wealth fund confidence, is particularly noteworthy.

“That’s been the missing link from completed deals before we had a revival of confidence. SOEs were more likely to complete because they took a long-term view and were not so much confidence driven, whereas for corporates … [it takes confidence] for a board to put its name to a public deal,” explains Damian. “So [the fact that] it’s the corporates entering the fray and being prepared to execute deals, that’s where we’ve seen the rapid growth in confidence.”

THEN AND NOW The contemporary deals environment is charac-terised by a greater mix of sectors than the resources-fuelled scene of recent years. The breadth of industries suggests a widespread revival of M&A activity – although it is too early to wax lyrical just yet.

“It would seem that all the conditions are there for the return of a thriving M&A market: we have a reasonably strong equity market; cash interest rates are at a 50-year low; the Australian dollar is down 15% over the last 12 months; and there is pent-up acquisition demand,” says Corrs Chambers Westgarth partner Sandy Mak. “[However], the stars have not as yet aligned for an M&A boom so far in 2014.”

Gilbert + Tobin’s Melbourne-based partner Craig Semple is also cautious.

“We are optimistically expecting a stronger level of deal flow, and certainly the experience of the Gilbert + Tobin team so far this year has supported this view,” he says. “However, this is a cautious optimism – we are not expecting some huge tidal wave of deals, but hopefully the tide will come in at least up to our knees!”

Several lawyers believe the Australian dollar will have a positive impact on M&A volumes, and DLA Piper partner David

AUSTRALASIANLAWYER.COM.AU

Ryan adds that the prospect of a free trade agreement with China being finalised sometime this year would only strengthen foreign investment.

Ryan also tips a targeting of the small caps. “As a result of the continuing tough market to obtain finance for greenfield projects, we expect to see more strategic acquisitions of small-cap companies, or their assets, by established and wellcapitalised buyers through friendly transactions,” he says. “For many smallcap companies – particularly in the resources sector – this will be merger by necessity, rather than choice.”

However, some target companies may be some-what spoilt for choice and Ryan acknowledges the competitive nature of some recent transactions and the impact this may have on the execution of deals.

“Given increased bidder competition, I also expect there will be continued emphasis on deal protection measures such as exclusivity, matching rights and break fees,” he says.

“Equity swaps will likely remain a feature of the public M&A landscape in 2014. Provided that bidders comply with existing guidance in respect of the use of swaps, we think that they will continue to be an effective tool in M&A deals this year.”

Semple says the prevalence of scrip deals was a feature of the 2013 market that may carry through to deals this year.

“While cash is still the preferred consideration, where the bidder and target were in the same industry, we saw an increase in deals offering cash and scrip,” he observes.

Other trends from 2013 that Semple has observed include bidders seeking more execution certainty, the preference for takeover bids over schemes, and overall higher levels of competition for the right target. “Deals are just taking longer to do,” Semple concludes – a pattern which perhaps will begin to wane once the deal-making returns in earnest. AL

A GRAIN OF SALT A controversial decision in recent M&A history is the Federal Government’s decision to reject US-based Archer Daniels Midland’s bid for GrainCorp.

What impact will this and the government’s general approach to foreign investment have on M&A levels?

Craig Semple, Gilbert + Tobin “I don’t think there would be much direct impact.

The situations in which the government did intervene were quite specific: indirectly it adds to a conservatism psychology of companies considering undertaking an acquisition, and contributes to the greater focus on the assessment of execution risk before launching into a deal.”

David Ryan, DLA Piper “Very little, in my view. There is no doubt the federal treasurer’s decision in the respect of Archer Daniels Midland Company’s proposed acquisition [has] left some people scratching their heads. However, the GrainCorp decision should not be perceived as a deterrent for future foreign investment in the agribusiness or other sensitive sectors. The decision highlights the fact that having an effective FIRB strategy, taking into account the political undertones that drive these decisions, is and will remain a critical feature of the success of inbound M&A investment into Australia.”

Sandy Mak, Corrs Chambers Westgarth “The implications of the government’s first major foreign investment decision have arguably created some uncertainty in relation to the foreign investment process. While it may be that the significance of the decision can be limited to agriculture, it is now also a little more difficult to predict with certainty how the government might react to the sale of significant strategic assets, for example monopoly infrastructure or media assets. It is possible that the GrainCorp decision may deter some foreign investment.”

Tony Damian, Herbert Smith Freehills “I don’t think investors are too concerned. I think people see GrainCorp with a set of unique issues which confronted it. Every now and again there will be a deal that gets knocked back, but you can still count them on one hand. If you look at [the recent removal of investment restrictions on] Yanzhou or State Grid [approval of stake acquisition in SP AusNet] – if there were a new anti-foreign investment bent, those would have been perfectly good deals for that to be continued.”

MAY 2014 | 11

NEWS / APPOINTMENTS

Appointments

 Marque raids Addisons

LATERAL PARTNER APPOINTMENTS NAME

PRACTICE AREA

Andrew Bruce

Presented by

GOING FROM

GOING TO

Corporate

Norton Rose Fulbright

Kemp Strang

Andrew Cheetham

Insurance

Cooper Grace Ward

HWL Ebsworth

Andrew Shearwood

Corporate

Herbert Smith Freehills

HWL Ebsworth

Caroline Brown

Energy and resources

Lavan Legal

Holman Fenwick Willan

Chris Mitchell

Infrastructure

Ashurst

King & Wood Mallesons

David Andersen

Insurance

Piper Alderman

HWL Ebsworth

Jason Leonard

Banking and finance

HWL Ebsworth

Mills Oakley

Julie Kinnear

Insurance

Fox Tucker Lawyers

Sparke Helmore

Keira Brennan

Energy and resources

Clayton Utz

Norton Rose Fulbright

Kirsty Dixon

Corporate

Addisons

Marque Lawyers

Malcolm Davis

Workplace relations

Herbert Geer

Mills Oakley

Paul Brennan

Construction and engineering

Parsons Brinckerhoff

Swaab Attorneys

Paul Gatward

Banking and finance

Clayton Utz

HWL Ebsworth

Rohan White

Administration

Sparke Helmore

Mills Oakley

Scott Hay

Insurance

Piper Alderman

HWL Ebsworth

Simon Adams

Energy and resources

Lavan Legal

Holman Fenwick Willan

Simon Champion

Corporate

Piper Alderman

Mills Oakley

Susan Warda

Family law

Coleman Grieg

Mills Oakley

Tony Butler

Property

DLA Piper

Mills Oakley

Marque Lawyers has a new head of corporate and M&A after poaching Kristy Dixon from Addisons.

Dixon had been partner at Addisons for less than a year, having previously been a senior associate in that firm’s office, as well as at Herbert Smith Freehills.

Her M&A experience includes public and private transactions for clients with consumerfacing products and services in the digital economy, telecommunications and IT sectors.

Following Dixon’s appointment, Marque managing partner Michael Bradley said that getting her on board was a “coup” for the firm.

 Mills Oakley adds five Sydney partners

Australian firm Mills Oakley has laid bare its ambitious expansion plans by bringing on board five new partners and 30 legal staff at its Sydney offices.

The move has boosted the firm’s total number of partners to 52.

The new partners all joined the firm between January and March and practise across sectors that include corporate advisory, financial services, government, workplace relations and family law.

Mills Oakley recruited from firms Piper Alderman, Sparke Helmore, Herbert Geer, Coleman Greig and HWL Ebsworth.

Mills Oakley chief executive John Nerurker said the appointments reflected the firm’s plans to expand the Sydney office more in line with the scale of the firm’s Melbourne operations.

Nerurker added that the firm was also looking towards Brisbane for further expansion over the next two years.

The five new partners are Simon Champion, Malcolm Davis, Susan Warda, Jason Leonard and Rohan White.

PARTNER PROMOTIONS NAME

PRACTICE AREA

FIRM

Clare Pope

Energy and resources

Squire Sanders

Bree Knoester

Personal injury

Adviceline Injury Lawyers

Jon Ireland

Corporate

Henry Davis York

12 | MAY 2014

 Kemp Strang launches into Melbourne Sydney firm Kemp Strang has expanded into Melbourne with a new three-lawyer office targeting banking and finance work.

To springboard its offering, the firm raided Norton Rose Fulbright for one special counsel,

AUSTRALASIANLAWYER.CO.NZ

and hired two of the firm’s former senior lawyers. Kemp Strang revealed that Norton Rose banking and finance special counsel Andrew Bretherton would join its Melbourne office following the conclusion of his contract. Former Norton Rose restructuring and insolvency partner Andrew Bruce and restructuring and insolvency special counsel Emma-Jane Stevens will also join Kemp Strang’s new office.

Kemp Strang formerly serviced the Melbourne market via the Kennedy Strang Legal Group, which made a decision to dissolve last year due to member firms wishing to pursue separate growth strategies.

Most recently he has served as managing director of investment bank Moelis & Company.

 Lavan Legal loses two energy partners

Tony Harrington

 Minter appoints new CEO

Professional services heavyweight Tony Harrington AM has been named the new CEO of Minter Ellison. He will step into the role on July 1, replacing John Weber, who has served in the role since 2009.

Harrington said he would be joining the firm at a pivotal time. “The legal profession [faces] increasing competition, changing client needs and, like many industries today, the disruptive forces of new technology,” he said.

Prior to joining Minter, Harrington served as Australian senior partner and chief executive of PricewaterhouseCoopers for eight years, subsequently taking on the role of global managing partner in strategy and transformation.

Susan Warda

Two of Lavan Legal’s energy partners have left the firm to join Holman Fenwick Willan’s Perth office.

Before the departure of partners Simon Adams and Caroline Brown, Lavan had bolstered its energy and resources practice in Perth with the appointment of two new partners – the first in December, the second in February.

Departing partner Simon Adams was at Lavan for three years as partner, and specialises in commercial and competition law in the energy sector. Caroline Brown also specialises in competition and regulatory law, particularly in relation to energy and resources infrastructure.

HFW is a global firm with offices in Melbourne, Sydney and Perth.

 HSF appoints new global disputes head

Herbert Smith Freehills veteran Justin D’Agostino is the firm’s new global head of disputes. The former Greater China managing partner will remain based in Hong Kong, where the firm is aiming to bolster its Asian practice.

D’Agostino will replace outgoing disputes head Sonya Leydecker, who is stepping into the role of co-CEO of the global firm.

MAY 2014 | 13

PROFILE / CHRIS HUGHES

A mad life in

MYANMAR Aussie lawyers have led the charge into an emerging Myanmar market and at their helm is Chris Hughes, the Baker & McKenzie partner taking up firm management duties in a country that, to the outside world, remains a mystery

14 | MAY 2014

AUSTRALASIANLAWYER.COM.AU

Live for nothing or die for something. These famous words come from what is easily American film’s most brutal portrayal of Myanmar, a 2008 work of fiction in which gangs of thugs pillage huts, civilians dance in mineinfested rice paddies, and pirates with mounted machine guns populate dingy swamps.

That film was Rambo 4, at the time the most violent movie in cinema history. And while no one would vouch for the credibility of such a depiction, it would be hard to deny that such images linger in the Western imagination.

Myanmar is little understood. After enduring close to 50 years of military rule, communist-style economic planning and international isolation, the country retains a cloak of mystery. Few people have gone there.

That is, until now. Thanks to a process of political reforms first enacted in 2011, the country is opening up.

Multinationals have sniffed the opportunity to engage the local business community and many are exploring their investment options.

The feeling is that times are a-changing, but the old perceptions of the country – rumours of its backwardness and violence that have been flamed by the media – still

MAY 2014 | 15

PROFILE / CHRIS HUGHES

“If you can navigate the issues and successfully do business in this market, there’s a lot of opportunity.

The mood here among locals is optimistic”

linger among those unfamiliar with the country.

Perhaps that is what makes Australian lawyer Chris Hughes so remarkable.

Hughes is one of the lawyers spearheading the evolution of Myanmar’s legal industry. The Baker & McKenzie partner has been managing the international firm’s fledgling Myanmar office in Yangon – the country’s former capital – since December last year.

He says the country’s rumoured backwardness, coupled with its room for growth, was what appealed to him. It is the very reason he has come to live and work in Myanmar.

“I’d been looking for opportunities outside of Bakers in Sydney and wanted to live in Asia,” Hughes says. “I didn’t want to work in Hong Kong or somewhere like that and liked the idea of working in a developing country … the opportunity to start the Myanmar office was circulating the firm.”

Hughes says he and his wife, along with their young family, had wanted to explore opportunities to live and work outside Sydney for some time.

They especially wanted to try something different. A prior experience in the UK had been professionally and personally rewarding for the family, and they felt they ought to work overseas again before Hughes hit 50. When the opportunity to lead his firm’s new Myanmar office came up, Hughes eagerly put forward his interest.

“We did a lightning due diligence,” Hughes says. “We spent about 36 hours on the ground in Yangon basically to answer two questions: could we find a place where we could live, and could we find a school to send our seven-year-old?”

After being taken around to houses in various states of disrepair, Hughes says his initial experiences were “sobering”, but the couple eventually found an area they could imagine themselves living in. They were happy with the international schools on offer and decided that working in Myanmar would be a great adventure.

HUGHES’ CAREER TIMELINE 1994: Graduates from Australian National University

16 | MAY 2014

2000: After deciding to change careers, Hughes obtains his LLB

2001: Hughes is admitted in NSW

2006: After having moved to the UK to work with Clifford Chance, Hughes is admitted in Britain

2008: Hughes and his family return to Sydney, where he rejoins Baker & McKenzie and later makes partner

2013: Baker & McKenzie appoints Hughes managing partner of its new Myanmar practice

AUSTRALASIANLAWYER.COM.AU

“We told ourselves to ignore the mangy dogs walking the streets, the crappy old cars and the horrible traffic, tap water you can’t drink and all the rest of it.

“You take that on the chin as part of the rich experience of living somewhere like this, but it was something we could do. The secret was to focus on the big picture – the opportunity.”

Deciding that it was the right opportunity for him, Hughes set about convincing Baker & McKenzie that he was the right man for the job.

They agreed and the rest, as they say, is history.

A YEAR IN YANGON The Hughes family’s experiences since moving to the country last year have been, not surprisingly, very colourful, Hughes admits.

He says the country is culturally fascinating and that his family is still at a chapter in their stay where the novelty of the experience is enough to make up for the day-to-day challenges of living there.

Such hardships include an intermittent electricity supply, which is amplified by the country’s lack of many modern technologies.

Infrastructure is deteriorated or often nonexistent, and the local currency, the kyat, suffers hyperinflation pressures.

“Things are a bit different. You can’t pop into Westfield Bondi Junction and have 100 shops at your disposal. Here you go to the wet market to buy your fish and chicken. It’s a simpler life. Even something like getting a vacuum cleaner is a twoday adventure for us. My wife will go to half the stores, trailed by their employees, as something bought in one place is rewired in another.”

PRACTICE POINTS Myanmar also has plenty of contrasts with Australia from a legal point of view.

“The biggest difference is trying to work out what the law is,” Hughes says, adding that the Myanmar legal framework isn’t as documented and institutionalised as lawyers in other jurisdictions would be used to.

Part of the challenge is political. Leading up to the early 1960s – before the country’s military coup in 1962 – Myanmar had a fairly sophisticated legal framework. As the country became more isolated, that framework began to atrophy. Today, five decades after the coup, the country is governed by a mixture of old common laws and

practices that were pursued by a centralised and controlled economy.

“When businesses ask us relatively simple questions, you can look to how the law is written, but inevitably you have to deal directly with the ministries and officials. You almost have to sit down and talk through the problems with them and get an answer on how they are likely to respond. It’s a totally different way of doing things.”

Hughes says that language is also an inevitable barrier. Even in his own office, English proficiency varies greatly and there has been little exposure to the language.

This theme of isolation carries through further to commercial practicalities. The local business and legal community is unfamiliar with many of the kinds of investments that international businesses are looking to make. Many of the projects they want to undertake haven’t been done in Myanmar at a large scale in decades.

Hughes says this requires a massive education process. Firm management has to explain what the issues are for international investors and how the regulatory framework is going to need to respond to them. Then the firm has to work out how it needs to translate such issues to the ministries in order to move forward.

“The capabilities and skills around these things are pretty mixed. We are working on that a lot in the office. It’s hard. It’s a country that’s been out of the loop for a while and it has to catch up real quick.”

FACT FILE: MYANMAR  Population: 56 million  The interest from multinationals: Rich resources include oil, natural gas and precious stones  Political timing: Since 2012, the US and other economies have been easing economic sanctions in response to historic Myanmar reforms the year before  Little-known fact: Before a 1962 military coup, Myanmar, then Burma, was considered by many to have the most robust legal market in Southeast Asia, outside Singapore

STAYING BEHIND Despite the immense legal and business challenges within the Myanmar market, Hughes says the opportunity makes up for it. He senses that the country is in a transition phase that puts it ahead of many other developing markets.

“If you can navigate the issues and successfully do business in this market, there’s a lot of opportunity. The mood here among locals is optimistic. They are welcoming of the changes that are happening. They see this as something that will bring direct improvements to their lives.

“For me as well, we’re doing projects that are incredibly stimulating. I’m loving it. It’s a terrific life experience. When I came it was not on a term contract. It was a one-way ticket to come and build something out of the office. I’m enjoying that responsibility.” AL

MAY 2014 | 17

COVER FEATURE / HOT LIST 2014

The legal industry’s

HOT 40 Australasian Lawyer reveals 2014’s 40 hottest private practice lawyers working in the trans-Tasman legal market What makes a lawyer ‘hot’?

It’s got nothing to do with looks, if you’re curious. In compiling this list of Australia and New Zealand’s standout legal talent, Australasian Lawyer has been burning the midnight oil researching the region’s prominent dealmakers and lawyers who have made the headlines.

What this feature seeks to achieve is 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. This included non-transaction areas, pro bono work, involvement in a landmark case or judgment, or a result that defied the odds.

Lawyers featured here could also have simply been water-cooler talk – a result of being involved

18 | MAY 2014

in something that, from an industry standpoint, was nothing other than interesting or amusing.

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

Thus, Australasian Lawyer’s HOT 40 does not purport to be an exhaustive listing of meritorious achievement.

Lawyers were chosen 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.

AUSTRALASIANLAWYER.COM.AU

OWN HOT 40 BREAKD

THE HOT 40

TOP 5 PRACTICE AREAS

1. Corporate advisory

3. Energy and

resources

GENDER SPLIT

2. Banking and finance

4. Litigation and dispute resolution

5. Real estate

BIGGEST DEALS

Male lawyers

26

$7.4bn Female lawyers

$5.07bn

$4.4bn

14

WHERE THEY PRACTISE

Brisbane – 1

Perth – 4

Auckland – 3

Broken Hill – 1 Newcastle – 1 Sydney – 22 Melbourne – 6

*Stuart Fuller now practises in Hong Hong

Christchurch – 1

ALAN MAXTON

ALLENS

AMANDA BANTON

PIPER ALDERMAN

ANTHONY LATIMER

NORTON ROSE FULBRIGHT

ASHLEY WARTON

ASHURST

ATHENA KOELMEYER

WORKPLACE LAW

BRYNN GILBERTSON

BELL GULLY

CAMPBELL HUDSON

GADENS

CHRIS CURETON

SQUIRE SANDERS

COLLEEN PLATFORD

GILBERT + TOBIN LAWYERS

DANIEL LIVINGSTONE

MILLS OAKLEY

DARREN FITTER

GILBERT + TOBIN LAWYERS

DAVID HOLLAND

BAKER & MCKENZIE

FRAN RUSH

CLAYTON UTZ

GAVIN SMITH

ALLENS

GRAEME QUIGLEY

RUSSELL MCVEAGH

IAN ROBERTSON

HOLDING REDLICH

JEN CRAWFORD

ANDERSON LLOYD

JOHN DENTON

CORRS CHAMBERS WESTGARTH

JOHN MANN

KL GATES

JOHN POULSEN

SQUIRE SANDERS

KATE JORDAN

CLAYTON UTZ

LEE MACDONALD

ASHURST

LES KOLTAI

DLA PIPER

MALCOLM SHELTON-AGAR

JACKSON MCDONALD

MARK TREISMAN

CHANDLERS LAW

MOYA DODD

GILBERT + TOBIN LAWYERS

NICK HUMPHREY

SPARKE HELMORE

ORLA MCJOY

CLAYTON UTZ

RACHEL STOREY

RACHEL STOREY & ASSOCIATES

RICHARD ANICICH

SPARKE HELMORE

ROGER WALLIS

CHAPMAN TRIPP

SANDY MAK

CORRS CHAMBERS WESTGARTH

STEPHEN WEBB

DLA PIPER

STEVEN TANG

MADDOCKS

STUART FULLER

KING & WOOD MALLESONS

SUE KENCH

KING & WOOD MALLESONS

TONY DAMIAN

HERBERT SMITH FREEHILLS

TONY SPARKS

ALLEN & OVERY

TRACY RENSHAW

CLIFFORD CHANCE

VIRGINIA BRIGGS

MINTER ELLISON

MAY 2014 | 19

COVER FEATURE / HOT LIST 2014

TRAILBLAZERS

The intrepid lawyers breaking new ground in the legal industry As industries go, the legal market is a tough nut to crack. Not only is it fiercely competitive – it’s becoming increasingly global. Demands on firms to provide more for less intensify every year and the cost of failing to adapt is high. In this section, we pay homage to a handful of lawyers who have reached incredible heights in the business of running a law firm. These lawyers have played key roles in their firms’ strategies to tap into new markets, transform their client base and grow their practice areas.

Stuart Fuller, King & Wood Mallesons With a clear vision of Asia as the new centre of global economic activity and the desire to build a ‘different’ type of international law firm, Hong Kong-based global managing partner of King & Wood Mallesons, Stuart Fuller, continues to be instrumental in the expansion and integration of the firm’s network, which now includes 30 offices.

At the helm of the first Sino-Western international law firm combination, Fuller recently acted as point man in negotiations to merge KWM with SJ Berwin, which delivered the firm a European platform and English law capabilities. As chief executive of the Hong Kong firm, Fuller led the full local partnership integration, including a new profit pool, employee terms, IT system and internal processes. He also continues to demonstrate his penchant for leadership and innovation, with achievements that include defining the global firm’s business priorities in a changing environment and the creation of a global secondment program.

20 | MAY 2014

Sue Kench, King & Wood Mallesons To those who know her, King & Wood Mallesons’ Australian managing partner, Sue Kench, is more action hero than lawyer. So much so that the Canada Pension Plan Investment Board, which she advised on its $2bn co-investment in the Barangaroo development site in Sydney, recently praised her work on the “arduous” nine-month transaction as “akin to John McClane in Die Hard 2 landing fuel-starved jumbos on Christmas Eve in a snowstorm.” But Kench’s work goes beyond legal and business expertise: as managing partner, she is heavily involved in the firm’s network expansion and is considered to have been instrumental in executing the integration of the Australian practice into the firm’s global network. A recognised innovator, she also has a track record working on deals that have set a number of new precedents and market trends in the real estate sector. Kench recently assisted DEXUS on its acquisition of interests in a portfolio of Sydney CBD office properties worth over $500m, which she helped close at ‘break-neck’ speed of under three weeks while keeping the deal off-market.

Les Koltai, DLA Piper

Joining from Ashurst in 2012, DLA Piper’s Les Koltai has been instrumental in realigning the firm’s real estate practice in Australia, after being quickly promoted to head the group. Koltai has used his expertise in crossborder real estate transactions to transform and expand the nature of the firm’s client base, which now includes well-known global REITs, private equity groups, asset managers and pension funds including The Blackstone Group, The Carlyle Group, Mapletree REIT and SEB Bank. He has also managed to boost domestic traction, adding clients such as Mirvac Group, Investa Property Group, Charter Hall and Abacus Property Group.

As a result, Koltai has ensured the firm is being pitted against traditional ‘tier 1’ players on deals of greater size and complexity, with large portfolio instructions valued from $100m to $1bn. Koltai is also proving an asset to the firm’s corporate, finance and tax groups, managing to personally represent 60% of all referrals to those groups.

AUSTRALASIANLAWYER.COM.AU

John Poulsen, Squire Sanders

Encouraging lawyers to be brave and take the ultimate leap of faith can be very difficult indeed – but that’s just what Squire Sanders’ Australian managing partner has achieved. Having led and managed the combination of the large part of a national firm with a top 10 global law firm, Poulsen has engineered its growth in Australia, with a focus on positive workplace culture that follows Jim Collins’ Good to Great motto – getting the right people on the bus so that the rest looks after itself. During his tenure, the firm also built a successful financial practice from scratch– something that’s certainly been helped by having Poulsen on the bus.

Malcolm Shelton-Agar, Jackson McDonald It’s not easy filling the shoes of a predecessor who worked as CEO for 14 years, but Jackson McDonald’s Malcolm SheltonAgar has done an admirable job since taking the reins from John McLean last year at WA’s biggest independent firm. Shelton-Agar came into the firm having worked at Singapore law firm Allen & Gledhill, where he was chief operating officer.

He had also spent more than a decade at then DLA Phillips Fox (now DLA Piper). Since joining Jackson McDonald, Shelton-Agar has implemented new strategies for advancing the firm.

Stephen Webb, DLA Piper

Internationally-renowned Stephen Webb is the type of projects lawyer that top tier clients with an interest in the Asia-Pacific region trust on deals that are a ‘first’ of their kind. Though now based in Brisbane, Webb has built a reputation as a true cross-border specialist, working in jurisdictions across the globe that include Abu Dhabi and Hong Kong, and has brought his experience home to Australia to advise clients across Asia. His work for public sector clients in the last 12 months includes advising the government of East Timor in relation to a significant oil and gas project in the Timor Sea, and he is also advising the Mongolian government on its first IPP project, CHP5. Webb also demonstrated cross-border expertise for private sector clients such as Xstrata, Leighton and Equis/Soleq.

John Denton, Corrs Chambers Westgarth

If you were looking for someone to chair a discussion between the presidents of Russia, China and Mexico, you would need that person to be a globallyrespected thought leader. That’s why, when the Australian Business Advisory Counsel recently hosted this exact group of leaders at its annual dialogue with APEC leaders, it called upon John Denton. Long one of the most influential lawyers in the country, Denton is the personification of his vision for a law firm. In this regard, Denton was recently appointed one of two originating Australian members by the Prime Minister and Treasurer for a business reference group of the G20, the B20.

John Mann, K&L Gates Mann has forged a strong reputation at K&L Gates and its predecessor firms.

He was responsible last year for finalising a critical merger, acting on behalf of Middletons in its combination with K&L Gates. Since then, his star has continued to rise, with advice such as that provided to Harbert Private Equity concerning its divestment in the Aesop Group. This was recognised in 2013 by the Australian Venture Capital and Private Equity Association (AVCAL) as the ‘best expansion stage’ deal of the year.

Mark Treisman, Chandlers International Lawyers It’s easier to headline the deals landscape within the ranks of a top-tier firm, but Treisman is proof that boutique firms can pack an awesome punch too if given the opportunity.

Treisman was one of just 18 solicitors selected nationally to represent clients in a $500m Federal Court investor class action relating to a failed managed investment scheme. He also advised on the sale of Australia’s fifth largest super fund administrator for an undisclosed amount. Those deals were in 2013 and he has since gone on to advise a significant private sector client on a $90m property development.

MAY 2014 | 21

COVER FEATURE / HOT LIST 2014

THE RAIN MAKERS

The legal pros who have headlined the deals environment

It’s a tough life running the marketing function of a corporate law firm. In theory, the firm is a team, a collective where the efforts and kudos are shared in equal measure among the partners. The reality is somewhat different. Every firm has their big dealmaker – the lawyer whose name seems to appear on every significant deal. This section recognises the lawyers who have advised on not only the biggest deals, but also on deals that were newsworthy, defied the odds or were just plain fascinating.

Nick Humphrey, Sparke Helmore Humphrey is a name that has become synonymous with private equity, having literally ‘written the book’: The Australian Private Equity Handbook (CCH). With key clients that include AMP Capital and Macquarie Capital, Humphrey has a reputation as a safe pair of hands on private equity and more broadly midmarket corporate and M&A deals. Recent advice includes that given to Tea & Coffee Traders on the sale of its shares in Jireh Group to the Singapore-listed Global Yellow Pages, for a purchase price of $35.6m. Since joining Sparke Helmore in January 2012 to lead the firm’s national corporate practice, Humphrey has built an eight-partner team from the ground up.

Virginia Briggs, Minter Ellison Briggs has continued to deliver what clients in the past have termed ‘technically fantastic’, ‘innovative’ and ‘commercial’ advice on a number of complex, large-scale property, development and government infrastructure transactions throughout 2013 and 2014. From leading DEXUS Property Group’s strategic acquisitions in Perth and Brisbane over the period worth $1bn in aggregate, to co-leading the landmark NSW Ports $5.07bn refinancing and long-term lease of Port Botany and Port Kembla, Briggs has continued to impress her long list of clients, which read as a ‘who’s who’ of the sector. They include AMP Capital Investors, Australand Holdings, Brookfield Multiplex, Commonwealth Bank, Charter Hall, Mirvac, the NSW Department of Transport, RailCorp, Sydney Ports Corporation, State Property Authority, and the Sydney Harbour Foreshore Authority.

22 | MAY 2014

Lee McDonald, Ashurst Having relocated from colder climes in London to Ashurst’s Sydney office in 2012, transport and railway infrastructure heavyweight Lee McDonald hasn’t wasted any time attaining ‘hot lawyer’ status in the Australian market. A large part of this has been driven by his ability to win business for the new brand by advising top-tier clients on key infrastructure deals. With a host of experience in the transport sector that he has imported from work on projects across Europe and the Middle East, McDonald has positioned himself as a key adviser on some of the most important transport infrastructure deals in Australia over the last 18 months. For example, he advised Projects Queensland/Department of Transport and Main Roads on its $4.4bn new generation rolling stock PPP, which will provide up to 100 new 6-car trains for the Queensland passenger network. McDonald’s team navigated a tight procurement timeframe, while preserving flexibility for broader reform of the rail sector and accommodating the decision of the new government to alter the procurement model from a Design-Build-Maintain approach to a PPP availability model. McDonald also advised Transport for NSW on the $1.6bn light rail PPP, which is set to transform Sydney’s public transport system via the extension of the system, and won a role advising a major consortium’s bid on the $4bn Northwest Rail PPP.

AUSTRALASIANLAWYER.COM.AU

Brynn Gilbertson, Bell Gully Gilbertson has been described as unbelievably resilient by sources.

“He’s hard working, a man of few words, a reputation for getting the deal done,” said one source. “He’s got very loyal client relationships and he’s been a long time trusted advisor for Fletcher Building in particular.” This includes advising Fletcher Building on its NZ$1.3bn takeover of Australia’s Crane Group, New Zealand’s largest onmarket takeover of an Australian public company. Gilbertson also featured prominently in the New Zealand government’s partial sell-down of key assets last year, including Mighty River Power and Meridian. He took the lead advisor spot for the government on Mighty River.

David Holland, Baker & McKenzie Readers of any NSW national paper in 2013 would probably have encountered evidence of Baker & McKenzie partner David Holland’s work and not even known it. Head of the international firm’s corporate practice in Australia, Holland advised the NSW government on the high profile sale to the private sector of some of its electricity assets and businesses valued in excess of $3bn, as well as advising the state government on the equally controversial proposal by Crown Sydney for a $1bn resort and gaming facility at Barangaroo. A renowned M&A and securities lawyer, Holland also finessed a number of deals for key client APN News and Media, including the sale of its remaining interest in its outdoor advertising business to Quadrant Private Equity for $96m, and the $246.5m acquisition of a 50% stake in Australian Radio Network and its New Zealand subsidiary, which included advising on the $132m fully underwritten accelerated non-renounceable entitlement offer, which will be used to fund the acquisitions. Cross-border instructions included advising the Ontario Teachers’ Pension Plan as the successful bidder for 70% of Leighton Holdings’ telecommunications portfolio for $885m.

Anthony Latimer, Norton Rose Fulbright

Papua New Guinea has become big business news lately, as resource-rich gas fields open up for development. Norton’s Anthony Latimer has had a key hand in this, advising the PNG government on its purchase of $1.2bn in Oil Search Ltd shares. The PNG government has purchased the shares as it seeks to develop the PNG LNG project, which aims to produce almost seven million tonnes of liquefied natural gas to export around the globe. The project is expected to deliver its first gas by mid-year, with 20% economic growth forecast in 2015 if all goes according to plan.

Alan Maxton, Allens

A pillar of Australia’s banking and finance talent pool, Maxton snared roles in 2013 that included advising Billabong on its recapitalisation (including competing bids and ongoing refinancings), Origin Energy on its $7.4bn refinancing, Vodafone on its $3.5bn refinancing, the consortium of lenders on AMP’s $1bn refinancing, and the financing of property developments that included One Central Park, Queens II and the Fawkner Centre. Maxton continues to advise financial institutions that include Macquarie Bank and CBA.

Gavin Smith, Allens

With a ‘rising star’ reputation across all three streams of the TMT practice area, Allens’ Gavin Smith continues to secure major instructions for top tier clients, which include advising Fox Sports Australia on its 5-year, circa $1bn NRL TV rights deal. A leading adviser in Australia on privacy, data protection and cyber security issues, Smith’s enviable client base includes Sydney Trains, Virgin Australia and Google. Smith recently advised Transport for NSW on its next generation IT infrastructure outsourcing for both data centre services and end user computing services, one of the largest IT infrastructure managed services arrangements in Australia.

MAY 2014 | 23

COVER FEATURE / HOT LIST 2014

Graeme Quigley, Russell McVeagh Quigley was cited by rival firms as one of Russell McVeagh’s top dealmakers.

His profile has been enhanced by his presence on significant deals, including a leading role for NZ’s Genesis on that entity’s selldown. One source described Quigley’s strength as his “technical ability” but another thought that the “trusted adviser” tag was a more apt description. “He would be seen in NZ as one of those people that the large corporates know as a trusted adviser, pulling in extremely complex deals,” the source said. Quigley also had a leading role advising Fonterra on its corporate restructure and ‘Trading Among Farmers’ program.

Daniel Livingston, Mills Oakley Lawyers Considered a trusted adviser by brands that have included Tabcorp, Echo Entertainment, ANZ, Westpac and Exxon Mobil, Livingston is helping propel Mills Oakley’s corporate practice towards $1bn in deals this financial year. An expert in M&A, capital markets, corporate governance and risk management, Livingston recently demonstrated his acumen on deals that included Findex Australia’s $131m acquisition of Centric Wealth Ltd, which included advising on an equity investment, and resources client Metro Quarry Group on a debt/equity investment made by Myer Family Company Holdings.

Roger Wallis, Chapman Tripp Recent deals for Wallis include advising Metlifecare on its ASX listing, institutional placement and share purchase plan and advising EBOS on its placement and rights issue in conjunction with its transformative acquisition of Symbion for NZ$1.1bn.

Wallis is described as the young gun of Chapman Tripp’s corporate offering: the rising star who has come into his own in recent years. “Roger was, back in the old days, the walking encyclopaedia [on] securities law and a superb technical lawyer, maybe not senior enough to develop a broader commercial reputation,” said one source. But things have clearly moved on since then, with Wallis being cited as a prominent dealmaker by many rivals.

24 | MAY 2014

Steven Tang, Maddocks Steven Tang has been slowly making a name for himself since joining Maddocks in March 2011.

The lawyer has carved out a niche for himself advising on highly complex deals, acting for Re:Capital in their acquisition of Ernest Hiller, which included debt refinancing. Tang also acted for Housing Loans Group in the refinancing of its loan book using a de facto securitisation structure. His transactions landscape has been further rounded off with advisory to a privately held electrical wholesaler in its acquisition of a New South Wales-based subsidiary.

Tony Sparks, Allen & Overy At the time of writing, Allen & Overy partner Tony Sparks had been involved in 2014’s largest equity capital market issuance to date. This entailed advising Citigroup on a block trade by CapitaLand of 226 million Australand stapled securities, representing a 39% stake in Australand for an aggregated US$766m ($848m). It is but one deal in a long and distinguished career. Sparks advises on a range of corporate and commercial transactions and is cited by peers as a ‘knowledgeable’ and ‘accessible’ team head.

Tracy Renshaw, Clifford Chance Clifford Chance’s M&A veteran in Perth, Tracy Renshaw, has had a busy year so far. The lawyer was the Australian adviser to Royal Shell Plc on its selling of Shell Australia’s downstream businesses (excluding Aviation) to Vitol. The total transaction value was just short of $3bn. The sale covers Shell’s Geelong refinery and 870-site retail business – along with its bulk fuels, bitumen, chemicals and part of its lubricants businesses in Australia.

AUSTRALASIANLAWYER.COM.AU

LANDMARK ACHIEVEMENTS

Lawyers who have had a notable or career defining year Old wisdom suggests that some lawyers are born great, others achieve greatness and some have greatness thrust upon them. Whatever was the case for the lawyers here, this section honours those who have had a reason to pinpoint 2013 or 2014 as particularly noteworthy years in their careers. This could be for a variety of reasons: a significant case, a ruling with far reaching consequences for the industry or taking on work that involved navigating some considerable hurdles.

understand the risks involved, including that of losing all of their money. It’s very pleasing today to have passed this major hurdle in having our clients’ claims resolved.”

One Lehman Brothers victim represented in the claim was MontroseAccess, a registered charity in Queensland which provides support to hundreds of disabled children and young adults.

At the time of the Federal Court judgment, MontroseAccess CEO, Darrel Bourke, said: “This decision comes as a massive relief to the hundreds of disabled children and their families who rely on our services. The losses from the Lehman investments in 2008 were significant. They affected our ability to employ support staff and extend core services to our clients and families. We can now plan ahead with more certainty.”

Amanda Banton, Piper Alderman Piper Alderman partner Amanda Banton led the ground-breaking case against Lehman Brothers Australia Limited, finalised in December last year.

As a result of the case, the liquidators of Lehman Brothers Australia agreed to settle IMF-funded claims, conditional on Court approvals. The settlement put 69 councils, church groups and charities a major step closer to having their claims resolved for roughly $180m lost on investments in complex financial derivatives known as collateralised debt obligations (CDOs). The CDOs have been sold by Lehman’s Australian subsidiary.

In its initial judgement, the Federal Court found that Lehman Brothers Australia, in marketing the CDOs to the claimants, had engaged in misleading conduct and negligence and had breached fiduciary duties and contracts.

“Our clients were conservative investors who should never have been approached to buy these CDOs in the first place,” Banton explained. “They were simply not in a position to

Ashley Wharton, Ashurst Wharton is an adviser to some of Ashurst’s biggest clients, including ANZ Bank. He is currently leading the team representing ANZ in the defence of the exception fees class action in the Federal Court in Melbourne, Australia’s largest-ever consumer class action and one which Wharton says is already delivering promising results for the client. The case has involved a High Court decision on a preliminary question, redefining the scope of the doctrine of penalty. Furthermore, Wharton led the Ashurst team representing the liquidators in the landmark Bell Group litigation in Perth, which stands as Australia’s longest-running piece of commercial litigation following 20 years of legal action.

MAY 2014 | 25

COVER FEATURE / HOT LIST 2014

Tony Damian, Herbert Smith Freehills

This last year saw Damian release the third edition of the book he coauthored, entitled Schemes, Takeovers and Himalayan Peaks. The 700-page work on M&A has made a significant contribution to the relevant law and, in the forward to the latest edition, Chief Justice T F Bathurst, Chief Justice of New South Wales, referred to the influence and importance of this work.

“Earlier editions have established this book as the preeminent text on schemes of arrangement. This edition will be indispensable to any practitioner in the area and, dare I say it, to any judge required to determine whether to approve a scheme,” Bathurst wrote.

Ian Robertson, Holding Redlich Robertson acted for the peak body of trade unions in New South Wales, Unions NSW and five NSW trade unions in a landmark case late last year in the High Court. The case challenged provisions in NSW election funding legislation that prohibit those not on the NSW roll of registered voters from making a political donation to a political party or candidate. The provisions also aggregate expenditure of trade unions affiliated with a political party with the expenditure of that political party for political expenditure cap purposes. In a game-changing decision, the High Court ruled in a unanimous decision that these NSW election funding laws are invalid because they infringe the implied freedom of political communication in the Australian Constitution.

The outcome has far-reaching implications and presents an opportunity for national reform of Australia’s election funding laws.

26 | MAY 2014

Cris Cureton, Squire Sanders Cureton acted for John Holland Pty Ltd (the largest building contractor in Australia and part of the Leighton Group) in its defence of current Northern Territory Supreme Court litigation in relation to a dispute concerning the Alice Springs Hospital. The case ran for seven years. John Holland had 13 third parties joined, including a number of offshore professional indemnity underwriters, and three fourthparties, all of whom had to have the plaintiff’s case apportioned and attributed to them.

Following this, Cureton prepared a series of seminars for John Holland providing information on how to avoid such a dispute in the future. This has toured Australia.

Rachel Storey, Rachel Storey & Associates It’s a tough time to be building a boutique firm in any market, but spare a thought for lawyers in some of Australia’s more remote regional centres. Rachel Storey practices full-time in NSW’s Broken Hill and was recently involved in a complex case that attracted a fair share of media coverage.

In the first case of its kind, Storey helped issue proceedings against the Parole Board, Department of Corrections and South Australian Police regarding their failure to properly manage a violent parolee who then went on to engage in a violent police siege. She also obtained an out of court settlement for the mother of the parolee.

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Colleen Platford, Gilbert + Tobin

Platford was the lead partner representing Google in its landmark High Court win against the ACCC in February 2013. The ACCC initially alleged that Google had engaged in misleading and deceptive conduct over sponsored links or advertisements which appeared on its search results pages. The High Court found that Google was not responsible for the content of third party ads displayed on its search results pages. This benchmark case raised significant issues for the internet, particularly in relation to the responsibility for third party content by search engines. The case was in the Federal Court of Australia – it went on appeal and ultimately to the High Court.

Moya Dodd, Gilbert + Tobin Dodd has been featured among eight FIFA ‘People of the Year’ who helped shape and promote football in 2013. During 2013, Dodd was appointed as one of the first women to join the FIFA Executive Committee, re-elected as a vice-president of the Asian Football Confederation and, most recently, appointed as chair of FIFA’s Task Force for Women’s Football, which focuses on the creation of a FIFA strategy for women’s football in the short and longer term. She travelled widely, advocating women’s roles in football, including visiting Iran’s Second International Congress on Football and Science and speaking out in Tehran in support of women being permitted to enter stadia to attend men’s football matches. “Businesses, governments and now sporting organisations are realising that organisations are better and fairer when women can fully participate,” said Dodd.

Richard Anicich, Sparke Helmore 2013 was an exciting year for Anicich, whose career has spanned more than 30 years. The lawyer was handed an Exceptional Service Award by the Hunter Medical Research Institute (HMRI) in recognition of his contributions in transforming the institute into one of the country’s leading medical research centres. Anicich was an original member of the HMRI Foundation in 1998 and was the inaugural Chair of the Foundation’s Strategic Funding Committee. He played a significant role in working to develop financial support from the business and broader community and managed the legal and contractual matters associated with the development of the HMRI building on the John Hunter Hospital campus.

This was a $90m project.

MAY 2014 | 27

COVER FEATURE / HOT LIST 2014

PILLARS OF THE COMMUNITY

Lawyers who have contributed to the greater good through pro bono work, mentoring or pursuing noble causes Australian and New Zealand lawyers are known for having a heart – and big ones at that. Lawyers devote a sizeable portion of their time every year to advancing good causes and often this is motivated by nothing more than altruism. These lawyers haven’t celebrated diversity, advised communities or advanced charitable causes to get the spotlight, but just this once we’re giving them the pat on the back they deserve.

Athena Koelmeyer, Workplace Law Koelmeyer has tackled big issues on a number of fronts.

She is the author of the Workplace Law Anti-Discrimination E-Book, which she created to provide human resources, payroll and managers with an overview of the current Australian Federal antidiscrimination laws. Koelmeyer is also an active supporter of KIVA, a web-based organisation which leverages a worldwide network of microfinance institutions, allowing individuals to lend a minimum of $25 at a time to help create opportunity around the world. She has drafted and lodged formal submissions to various government ministries, addressing the potential for lawyers to be excluded from work due to the rules surrounding the right of parties to be legally represented by lawyers of their own choosing, in matters before the Fair Work Commission.

Darren Fittler, Gilbert + Tobin

Campbell Hudson, Gadens Hudson (pictured, centre) has played an integral part in helping reduce the socio-economic gap between Indigenous and non-Indigenous Australians, having led Gadens’ flagship Lilla Aboriginal Community Engagement project last year. The project involved lawyers from the firm travelling to the remote Lilla Aboriginal community in the Watarrka National Park and working with school students and teachers from the Watarrka School to write a school song, with the objective of inspiring the children to progress through education. The students were then sent on a sponsored educational visit to Sydney, where they performed and recorded the Watarrka School Song.

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Proving that anything is possible with passion, tenacity and a never give up attitude, Darren Fittler has achieved a world first and raised awareness for blind people around the world. Fittler is a lawyer in Gilbert + Tobin’s Corporate Advisory group and became the first blind person in the world to complete the Tough Mudder in October 2013. For those unfamiliar with the race, it is a 21km army-style obstacle race where participants run through bales of burning hay, immerse themselves in a skip bin filled with ice and water and undergo a form of electro-shock therapy slithering on their stomachs through and beneath dangling wires carrying 10,000 volts.

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Fran Rush, Clayton Utz

Kate Jordan, Clayton Utz

Rush recently returned from a trip to the Philippines in support of the not-for-profit organisation Good Return.

She and colleague, Sydney corporate partner Kate Jordan, observed Good Return’s work firsthand before embarking on a fourday fundraising trek up Mt Madjaas, the highest peak in the Philippines. To date, the two women have raised over $17,000 for the cause. Good Return works to create long-lasting change in the lives of some of the poorest people living in the Asia-Pacific region by providing small loans and banking services, as well as financial education and skills-building training to help deliver long-term benefits to families and individuals facing poverty. “What appeals most to us about Good Return is that what it does is empower the poor, particularly women, to lift themselves and their families out of poverty,” says Rush.

Apart from her involvement with Good Returns, working alongside colleague Fran Rush, Jordan worked closely with the Australian Paralympic Committee, on a pro bono basis, to put in place broadcast arrangements with the Australian Broadcasting Corporation in respect of the Paralympic Games. She is also leading the Clayton Utz team that will support various rugby unions in the negotiation of media rights deals.

Jen Crawford, Anderson Lloyd

The Christchurch rebuild has been a matter close to international hearts and it is therefore with some pleasure that we are able to acknowledge Anderson Lloyd partner Jen Crawford and her work on the restoration of the Arts Centre of Christchurch. This project, believed to be the largest heritage project currently being undertaken in the world, involves a NZ$290m, seven year post-earthquake program to restore a cluster of heritage buildings and rebuild the city’s cultural heart. Crawford is chair of the Arts Centre of Christchurch Trust Board, devoting her time on a pro bono basis. “Jen is absolutely devoted to the Christchurch Arts Centre and she lives and breathes its restoration,” says Nicky Wagner, MP for Christchurch Central.

Orla McCoy, Clayton Utz

McCoy was promoted to the Clayton Utz partnership in January and advised on a highstakes ABC Learning Centres (ABC2) matter. She and a cross-practice team helped the client restructure and sell more than 200 childcare centres – which, without the client’s intervention would have been shut down. The matter involved significant legal issues, including ensuring leases remained on foot, applications to the Court and numerous indemnity and liability issues.

Sandy Mak, Corrs Chambers Westgarth Colleagues describe her as a “dynamo” – passionate about championing women lawyers.

As co-chair of Corrs’ Diversity Council, Mak has driven key initiatives and programs which have seen an improvement in the progression and development of female lawyers at Corrs. She has also helped develop ground-breaking initiatives for the professional advancement of women.

Aside from these contributions, Mak has devoted her time over the past four years as a lecturer in takeovers and schemes at Sydney University’s undergraduate course Corporate and Securities Regulation on a probono basis.

MAY 2014 | 29

PROFILE / ANDREW DARWIN

Darwin’s theory of legal evolution DLA Piper managing partner and global chief operating officer Andrew Darwin talks of survival strategies and the response to an influx of international firms, and about the British take on the local market It is 7 o’clock on a frosty Monday morning when Andrew Darwin jokes about becoming something he used to loathe.

The managing partner of DLA Piper-Australia is behind the wheel of his car, cruising down England’s M1 motorway. It’s a timely visit to his home country, marking a year to the day that Darwin first moved from London to take up management duties in Sydney. The air outside is cold and the Brit admits he isn’t accustomed to the spring chill after living in Sydney. He then lets slip a surprising confession.

His voice straining over the highway traffic, he tells Australasian Lawyer that he used to hate managers.

“I used to despise management,” he says. “As a young corporate lawyer, I could never understand why these older guys had given up all the challenges of being a deal-doer to get involved in management.”

It’s an ironic statement for sure, and one that isn’t

30 | MAY 2014

lost on Darwin. The DLA Piper chief operating officer (outside the US) and former managing partner of the firm’s UK office is the epitome of a law firm management figure. DLA Piper, after all, isn’t just a big legal brand – it’s the world’s largest law firm.

Part of the irony is that Darwin has accomplished big things through his DLA management roles. The lawyer has watched what was essentially a British-only firm morph into a truly global player, one that straddles 77 offices in more than 30 countries.

“I guess what got me over the line, from practice to management, is the opportunity. If you had drawn a pie chart of DLA’s operations in 2002, about 98% of that would have been in the UK ... since then we’ve grown to what we are now.”

Despite this position, the firm isn’t resting on

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“There used to be an old pecking order in Australia and it has been shaken up. That’s good for us because we are trying to establish a different and stronger brand”

MAY 2014 | 31

PROFILE / ANDREW DARWIN

its laurels, and Darwin says that recognising how the global legal industry is changing was part of what prompted his move from London to Sydney.

DLA Piper’s leadership had long stressed that the firm needed to operate on a “truly global” scale and Australia was a strategic market.

Darwin’s original mandate in becoming the firm’s Australia managing partner was to get the local practice in line with its international operations.

The Australian practice had been moving closer to the global firm’s way of doing things since 2006, when a partnership with Phillips Fox paved the way for a full financial merger in 2011. To accomplish the integration, the firm needed someone with DLA blood in their veins. Having joined the firm in 1981 as a trainee, Darwin fit the criteria to a tee.

“My boss, Nigel Knowles, came to me in December 2012 and asked if I was interested in going to Australia for two or three years. At that stage we had merged the processes of the Australia business, but we’re a long way from getting the client synergies to the level we wanted. I thought, ‘why not?’ It would be a great job to complete the integration. It was also an exciting time in the legal market generally and in Australia.”

INTERNATIONAL PRESSURES Darwin says the reality of operating in Australia has been a lot different to how he and the firm had

KEY UK VS AUS DIFFERENCES Owing to London’s eminent position among global financial markets, Darwin says key London developments could be headed Australia’s way:

“My impression is that clients are defaulting to relationships that they know with individuals.

They are less certain about what the brands represent” 32 | MAY 2014

Clients: The way companies procure their legal services is becoming more and more sophisticated in London, Darwin says, and he believes this is slowly happening in Australia too. Big institutions are managing their lawyer relationships with greater sophistication, and more companies may follow suit.

Regulations: “By comparison, Australia is a conservative market in some ways. There is quite a high degree of focus on regulation. The interesting thing is this is all being thrown up by all the new entrants into the market.”

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imagined. “When we started our relationship with Phillips Fox in 2006, we saw ourselves as a pretty early mover to Australia. We didn’t think a lot of international firms would move in, and thought our global reach would be a differentiator for a greater period.”

Darwin adds that the influx of a number of other international firms into Australia, along with the succession of mergers and integrations that have taken place among local firms, has put pressure on the firm to up its game in its attempt to grow the scale of the Australian practice.

“Clients now have a broader range of choices for international firms than we thought there would be four or five years ago … I think there is some way to go before clients can work out exactly what the market looks like.

“Right now my impression is that clients are defaulting to relationships that they know with individuals. They are less certain about what the brands represent.”

SURVIVAL OF THE FITTEST

How firms will have to adapt to a global shift Darwin says that to survive in 2014 and beyond, firms will have to be one of two things: super niche or have global capacity. “If you get caught in the middle ground where you are neither, you will be vulnerable,” he says. Mergers Even DLA Piper, as the world’s largest firm, has less than 1% of the global market. This fragmentation cannot last. “We’ll definitely see more mergers and more consolidations, but also more failures occurring in the market. There have already been a number of international firms go bust.” Alternative providers Darwin says the rise of alternative providers shouldn’t be underestimated. “You’ve got people outside of traditional firms coming into the market saying they can do things cheaper. They’re not just trying to run different business models in the same organisation, and we’re only seeing the beginning of that trend.”

THE CORPORATE PUSH Another key imperative of Darwin’s tenure as managing partner of DLA Piper-Australia is to rebalance the practice. His vision is for more of an emphasis on transactional practice areas. The traditional emphasis in Australia, he says, has been around litigation and regulation, but he wants to see the firm reach a point where its corporate and finance work represents close to 40% of activity.

It’s a big ask. Right now he says that corporate and finance work combine to account for roughly 30% of the firm’s local work. To grow these functions he adds that the firm will have to put particular focus on growing its corporate practice. The magic number is to make corporate work account for 25% of the practice three years from now.

“Talking to a lot of other firms, we recognise that they [also] have that at the top of their priorities. It’s a long-term play.”

The way DLA Piper plans to accomplish this is by growing its own internal people, supported by selective lateral hiring. Another growth driver will be leveraging off of its global network.

“We’ve got to encourage other key markets to actually open up their clients to the Australian practice. You can actually build a pretty good commercial practice on the back of your existing clients.”

In a similar way, Darwin says that DLA Piper will be looking to take advantage of its size and larger

budget to make inroads into markets. In this regard, he says the firm has the benefit of being bigger than its rivals, but not so big that it makes the firm cumbersome and slow-footed.

“We are large in legal terms, but we are still quite small relative to the size of big accounting firms, for example. We are still pretty agile, but the one thing bigger scale gives us is the ability to make changes and investments. We’ve got the budget and the balance sheet to take some risks.”

AUSSIE OPPORTUNITIES Considering that Darwin’s tenure as managing partner in Australia was never going to be a permanent basing and that the plan had always been to eventually pass MP duties to a home-grown successor, he says there will be a lot of things he will miss about working in Aussie law.

He points out that there are a lot of similarities in the British and Australian legal markets, but he also believes Australia is at a critical point, one where a new order is being set. He says it has been exciting being at the front line of this evolution.

“There used to be an old pecking order in Australia and it has been shaken up. That’s good for us because we are trying to establish a different and stronger brand in the market and there is an opportunity to do that.” AL

MAY 2014 | 33

BRISBANE / SPECIAL REPORT

The new black Brisbane offices are very much in fashion among national and international firms, but as Ben Abbott finds, local independents are weathering the competition exactly as improving economic conditions give them hope of moving further into the black

34 | MAY 2014

AUSTRALASIANLAWYER.COM.AU

In February, Australasian Lawyer was the first to report that Clyde & Co, already located in Sydney and Perth, was looking at opening a Brisbane office by mid-year 2014.

Managing partner John Edmond said all options for opening the office were on the table, including lateral recruitment of teams and individuals, or parachuting in home-grown talent.

“What we do have is a mandate; we are seeing a lot of opportunity [in Brisbane] with our existing client base in Australia and globally,” Edmond told Australasian Lawyer.

It was the beginning – or, more accurately, a continuation – of what could be termed a rush.

Only a month later, Mills Oakley Lawyers’ CEO John Nerurker told Australasian Lawyer the firm would likely make a big expansion to its Brisbane office this year, as part of a “feverish” growth drive.

And then came Lander & Rogers. Lander opened an office in early April, which will focus initially on insurance and commercial litigation, thanks to the recruitment of DLA Piper’s Andrew Forbes and the relocation of partner Matt Dudakov.

By now, the news that more firms are eyeing Brisbane for potential growth – often at the behest of their clients – will not really be a surprise to the perennial bastions of local law.

After all, the law firm partnerships that have so far weathered the seemingly all-pervasive trends of internationalisation and consolidation in Brisbane to remain independent have seen the market change rapidly around them. Indeed, the

“There is certainly a more positive feeling in terms of workflow, and I’d have to say that things look to be in a better position than this time 12 months ago” Chris Ward, Cooper Grace Ward last few years in Queensland’s capital have seen a plethora of new office openings and firm mergers (see table, p36).

And there will be more to come. International law firm Baker & McKenzie is one firm rumoured to be eyeing the market, according to local partners, though the firm remains coy about its intentions.

“We’ve made no decisions to open an office in Brisbane, but as we’ve said in the past, we are bullish about our long-term growth prospects in Australia and are always looking at new opportunities that will benefit our clients,” said a spokesperson.

It seems that Brisbane – still proudly parochial, still conservative – is the new black.

WHAT’S IN A NAME? The law firm manoeuvrings have been likened by local managing partners to a chessboard – one in which one piece (or brand) replaces another, rather than spawning new players. In fact, an

MAY 2014 | 35

BRISBANE / SPECIAL REPORT

BRISBANE LAW FIRM OFFICE OPENINGS, 2010–14 Firm

Opening

Details

Clyde & Co

2014

Revealed to Australasian Lawyer plans to open Brisbane office by mid-year 2014

Lander & Rogers

7 April 2014

Opened on 7 April, with the recruitment of local DLA Piper litigation partner Andrew Forbes and the relocation of the firm’s own Matt Dudakov

Thomson Geer

31 March 2014

Formed via the combination of Herbert Geer (which opened in July 2008 through a merger with local firm Nicol Robinson Halletts) and Adelaide-based Thomsons Lawyers

Colin Biggers & Paisley

November 2013

Launched through a merger with local firm Hemming+Hart, and announced initial plans to double in size within two years

Wotton + Kearney

July 2013

Launched a Brisbane office with the relocation of existing partner Paul Spezza

K&L Gates

January 2013

Gained its first office in Brisbane via a merger with Australian firm Middletons

HopgoodGanim

November 2012

Launched Perth office via merger with Q Legal

TressCox

October 2012

Merged with local law firm Macrossans Lawyers

Middletons

January 2012

Launched via merger with Flower and Hart

Thomsons Lawyers

June 2011

Opened a new Brisbane office

Henry Davis York

March 2011

Opened a new Brisbane office

M+K Lawyers

December 2010

Merged with local law firm BCI Lawyers

Gadens

November 2010

Merged with local law firm Mansell Pennington

Johnson Winter June 2010 & Slattery

36 | MAY 2014

Opened a new Brisbane office

anecdotal poll of Brisbane’s stalwart locals finds that, despite the raft of reshuffling that has occurred, the competition remains much the same.

“Many of the new entrants have taken over or merged with long-standing Brisbane firms, so whilst the landscape is changing with new brands emerging, it is still essentially the same people just operating under different brands,” says Carter Newell partner Paul Hopkins.

“There is certainly more competition there, but at this stage we are not necessarily seeing it,” says Cooper Grace Ward managing partner Chris Ward.

“We are watching it closely, but our main competitors are the same firms we have been competing with for a number of years.”

Likewise, HopgoodGanim corporate partner Nicole Radice says the firm has not seen many new players enter the tender processes in which the firm is regularly involved. “I don’t think it has really changed things for us – our key competitors are the same.”

This reality may reflect the fact that new Brisbane legal brands have followed their existing clients and work – such as the insurers and the banks – who are demanding Eastern Seaboard coverage. International brands, likewise, are targeting high-end cross-border work.

However, the rise of new brands has not gone completely unnoticed: local firms note that some players are gaining local clients thanks to new international branding and global footprints.

K&L Gates’ Brisbane office is a case in point.

Once Flower and Hart Lawyers, it first merged with Middletons, before again being rebadged as part of K&L Gates.

PAROCHIAL AND PROUD Brisbane law firms are not immune to the need for geographic expansion. McCullough Robertson, for example, plans to double its Sydney presence over the next three years from a current contingent of five partners, while Perth remains an option.

“If we were going to go anywhere, Perth would be where we would go,” managing partner Guy Humble says.

Carter Newell, meanwhile, has just recruited its first senior lawyer into its Sydney office, while HopgoodGanim is busily recruiting in Perth to consolidate its merger with Q Legal.

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However, most of Brisbane’s independent local firms remain proud of their ‘parochial’ roots, a characteristic of clients in the market that makes it harder for newcomers to make inroads.

“We know Queensland very well, and it might sound parochial but Brisbane has a fair bit of relationship about it,” says Ward.

“It is still growing into a thriving metropolis like Melbourne or Sydney, so it has a very different feel about it.”

Hopkins agrees. “There is still a strong parochial client base that does like to deal with firms that are locally owned; there are a lot of listed companies and successful private companies with a $300m-plus turnover that are local players and like to deal with local firms.”

This means local firms see relationships as paramount.

“From our perspective we have always worked towards building loyal client relationships.

While we can’t be complacent, we work very hard at it, and I think that it is a big thing in Queensland,” says Radice.

The market’s conservatism is evident in the less active recruitment market in Brisbane, which is described as far less ‘fluid’ than Sydney.

However, that is expected to continue to change over time.

“I think that will accelerate and we will start to see more [recruitment]; it would be naive to think there won’t be more fluidity in movement between firms,” Ward says.

Cooper Grace Ward is one firm that has embraced regional Queensland over a long

“Whilst the landscape is changing with new brands emerging, it is still essentially the same people just operating under different brands” Paul Hopkins, Carter Newell period of time, and invested in developing clients in places like Cairns, Roma and Gladstone. In the last year, the firm has presented to almost 5,000 potential clients internally and externally.

“We focus largely on accountants out there, and you have to invest a lot of time and effort – it’s taken us 20 years to do it – to be known as a brand in the market.”

Ward says the result is a staple diet of work in tax and commercial law, with benefits in a variety of spin-off areas such as property, workplace, super and even family law.

“That doesn’t happen overnight; you’ve got to sustain it and keep it up year after year,” he says.

Paul Hopkins, Carter Newell

‘SUICIDE’ AND SERENDIPITY One weapon new legal brands have at their disposal is price discounting. There is talk of the fee competition biting into law firm margins, particularly those that are growing offices.

“There is some cost-cutting going on,” says Radice. “We have noticed competitors putting out what we can only assume are loss-leading prices. You have to question if that is sustainable in the long term, though I can understand the

Chris Ward, Cooper Grace Ward

MAY 2014 | 37

BRISBANE / SPECIAL REPORT

Hopkins also sees this as advantageous. “The more firms that choose to link up, that means there are less strong, independent parochial practices like ourselves,” he says.

Firms like McCullough Robertson and HopgoodGanim are capitalising on this by pursuing aggressive international strategies.

And they are – for now at least – happy to remain local.

“We have been courted many times, and we are, I suspect, an attractive morsel because of the reputation we enjoy in this state,” Humble says.

“But we are determined to stick to our strategy of remaining a leading Australian independent law firm.”

BACK IN THE BLACK

Local law firms are seeing the trend towards mergers, particularly international linkages, as potentially serendipitous, rather than a threat Guy Humble, McCullough Robertson

Nicole Radice, HopgoodGanim

38 | MAY 2014

logic behind it.”

Ward says Cooper Grace Ward is on the lookout for such strategies.

“We have been warned suicide pricing will be there,” he says. “All clients are price sensitive full stop. But clients will pay for proper service; if service exceeds expectations, they will pay reasonable fees.”

However, local law firms as a group are seeing the trend towards mergers, particularly international linkages, as potentially serendipitous, rather than a threat.

“We believe that as a number of firms through the internationalisation process have become aligned to overseas firms, that has freed up a number of referrers of work into Australia, who are looking now for independent firms rather than aligned firms,” Humble says.

Competition may be on the rise, but at the same time firms are increasingly optimistic.

“There is certainly a more positive feeling in terms of workflow, and I’d have to say that things look to be in a better position than this time 12 months ago,” says Ward.

“I think everyone has to be ‘cautiously optimistic’ – you’ve got to be sensible in these times – but we are certainly seeing green shoots in the commercial side of our office,” Hopkins adds.

This was far from a certainty. After the slowdown in the state’s important resources and energy sector, firms had a difficult ride through 2013, and the start to this year was slow.

“We were dismayed at February and wondered if it was an indication of a broader slowdown for the balance of the financial year,” explains Humble.

“But activity and business has picked up remarkably through March. With the banks lending again, and with M&A and IPO activity and other front-end practices starting to show high levels of activity, we are somewhat encouraged about the balance of the financial year,” Humble says.

Activity in bellwether practices for economic activity – such as IP – is encouraging. Firms also mention growth potential in areas such as agribusiness, gas mining, infrastructure, property, construction, litigation and even private equity investment.

“Our broader view is that while we expect that to continue this financial year, we anticipate that the balance of the calendar year will continue to get stronger again,” Humble says. AL

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MAY 2014 | 39

FEATURE / D&O INSURANCE

D&O insurance:

An uncertain future

The insurance sector has ridden a legislative rollercoaster over the past 18 months, as landmark cases have hit the courts and growth in litigation funding has reached new heights, Mackenzie McCarty reports Recent landmark cases in Australia and New Zealand, as well as the increasing availability of litigation funding and class actions, have made for an intriguing insurance legal landscape over the past 18 months.

Developments in the D&O sector have been heavily influenced by two cases in particular: the Bridgecorp case in New Zealand and the Great Southern class action in NSW. However, Wotton + Kearney partner and D&O specialist Patrick Boardman says the initial trend towards litigation funding growth can be traced back to the Federal Court case in relation to Centro Retail Australia’s class action in 2012.

The class action, brought by Maurice Blackburn and Slater & Gordon against the failed property development company and its former auditor,

TIMELINE OF IMPORTANT D&O CASES May 2012: Centro Retail Australia reaches an agreement to settle six proceedings, including a number of related shareholder class actions brought against certain pre-aggregation Centro entities on behalf of group members represented

by Maurice Blackburn and Slater & Gordon in the Federal Court in Melbourne.

May 2012: The High Court releases its decision in the James Hardie asbestos case, confirming that the directors of James Hardie Industries Ltd breached their duties of care and diligence by approving the release of a misleading announcement to the Australian Stock Exchange.

40 | MAY 2014

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“raised the bar” on director’s duties, according to Boardman.

“Centro arguably raised the bar on directors’ duties and emphasised the requirement for all directors to apply an independent enquiring mind and not blindly rely on executives or external auditors when armed with contrary knowledge, at least not without asking relevant questions and being provided with appropriate answers,” he says.

This was soon followed by Chubb Insurance Company of Australia Limited v Moore (Chubb v Moore), whereby a group of insurers who provided D&O policies to Great Southern directors were put on notice by the investors that the investors had asserted a charge over the relevant policies.

Sparke Helmore Lawyers senior partner John Coorey says the D&O insurers were concerned that if they had advanced defence costs to the Great Southern directors pursuant to the policies, they may have been at risk if they had no legal basis to do so. The insurers, led by Chubb, subsequently sought clarification of their position from the Supreme Court of NSW, though the matter was referred directly to the Court of Appeal given its importance.

“The key issue for determination by the NSW Court of Appeal was whether the statutory charge contained in Section 6 [of the Law Reform (Miscellaneous Provisions) Act 1946] prevented D&O insurers from advancing defence costs to the insured directors and executives,” says Coorey. “A second, highly important issue was the extraterritorial effect of Section 6. The provisions of Section 6 are unique to NSW, with comparable legislation in the Northern Territory and the ACT.”

July 2013: The full bench of the NSW Court of Appeal hands down its decision in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212. The case arose in the context of two class actions in response to the collapse of Great Southern Ltd and its subsidiaries (the Great Southern Group). The Great Southern Group collapsed in 2009 and triggered class actions by investors seeking damages against various former directors and executives.

“This is something clients are very concerned about ... they can end up paying defence costs and find out later they have to pay again” Shayne Thompson, Moray & Agnew The Court of Appeal found that the Great Southern investors could not bring claims under Section 6 because the proceedings were not being conducted by courts in the state of NSW, where legislation was based. The Court of Appeal confirmed that Section 6 had no extraterritorial operation and that it was only capable of creating a charge over insurance moneys in respect of claims brought in a court in that state. However, that decision can be overturned if the High Court allows the plaintiff to appeal and the appeal succeeds. The case is subject to a hearing in June, according to Moray & Agnew partner Shayne Thompson, who adds that the issue is something his clients are keeping a close watch on.

“This is something clients are very concerned about. If the New Zealand position is followed [in Australia], they can end up paying defence costs and find out later they have to pay again, so they are very concerned about having some kind of certainty,” says Thompson.

October 2013: The Victorian Court of Appeal hands down its decision on a class action case involving failed agribusiness managed investment schemes group Timbercorp. In dismissing the investors’ appeal, the Court of Appeal held that Timbercorp directors did not have actual knowledge of a significant risk to viability until bank support wavered, even after publication of the last PDS and after the collapse of Lehman Brothers in late 2008, which was swiftly followed by the sudden termination of negotiations Timbercorp had been engaged in for the sale and leaseback of certain of its properties and forestry assets.

December 2013: Liquidators of Lehman Brothers Australia (now in liquidation) agree to settle the IMF-funded claims, conditional on court approvals. The settlement puts 69 councils, church groups and charities a significant step closer to having their claims for roughly $180m in damages lost on investments in collateralised debt obligations sold by Lehman’s Australian subsidiary up to 2007 resolved.

December 2013: The Supreme Court of New Zealand (by a split 3:2 majority) overturns a Court of Appeal decision involving failed finance company Bridgecorp.

The Court held that defence costs should not erode the limit of cover available to a successful third-party claimant, on the basis that wording of the legislation does cause a charge to arise at the time the event giving rise to the liability occurs, and thereby secures the amount of any liability to the third-party channel.

MAY 2014 | 41

FEATURE / D&O INSURANCE

UPSWING IN CLASS ACTION FUNDING

US COMPANIES AGITATED OVER AUSTRALIAN LITIGATION FUNDING US companies are reportedly so concerned about the increase in litigation funding in Australia that the US Chamber Institute for Legal Reform (ILR) has joined forces with defendant firm King & Wood Mallesons to put forward recommendations for law reform.

Action on the oversight of third-party litigation funding cost Australian companies $480m in 2012 – nearly half of total settlements of that kind in Australia over the past 20 years, according to the Australian Financial Review. Almost half of those were backed by litigation funders, according to the ILR report.

BRIDGECORP The New Zealand position to which Thompson is referring is the New Zealand Supreme Court’s decision on BFSL 2007 Ltd v Steigrad [2013] NZSC 156 involving failed finance company Bridgecorp, which was reached just before Christmas last year.

The court ruled that a charge could be placed on the directors of the failed finance company’s policy, allowing the plaintiff to freeze the defence’s insurance proceeds until the claim was settled.

Carter Newell partner Mark Brookes says the two cases directly address whether directors are able to use their D&O policies to fund their defence costs in the usual way, or whether third-party claimants can defer that entitlement to ensure the money available under the policy is preserved to first pay any damages entitlements the claimants may have.

“Directors and insurers have a common interest in ensuring the directors are able to use the policy to pay their defence costs,” says Brookes.

“However, the highest court in New Zealand has ruled that in certain situations the proceeds of a D&O policy are not available for defence costs. The consequence is that directors may have to pay their own substantial defence costs, even if they have a D&O policy in place. That position has not been followed in Australia, but the issue is subject to an appeal and will be closely followed by the industry.”

Depending on the eventual outcome of the Great Southern case, Brookes says there may be pressure for legislative change to protect directors’ access to their D&O policies in order to fund their defence costs, irrespective of the existence of any third-party claims for damages against the directors. “In the meantime, many insurers have responded to this issue quickly by offering stand-alone or quarantined cover for directors’ defence costs,” he adds.

42 | MAY 2014

Brookes says his firm has seen a “marked” increase in D&O claims over the past 18 months, often arising from the insolvency of participants in joint ventures or the failure of those projects themselves.

“The quantum of those cases is often substantial and there are sometimes a number of coverage issues that need to be addressed to identify the extent to which the policy responds. The primary benefit of the policies is often the significant cover they provide for directors’ defence costs,” says Brookes.

Wotton+Kearney has witnessed a similar upswing in D&O claims, says Boardman. “Claims are arising almost instantaneously with events,” he adds. “Claims used to take years to eventuate, as plaintiff lawyers were content for ASIC or the liquidators to incur the costs of investigating potential claims and examining witnesses. We’re now seeing a race to be the first to file claims after relevant events have occurred.”

Coorey says his experience at Sparke Helmore indicates that most of the growth in class actions includes litigation funded actions by shareholders.

“Such actions are usually based around breaches by companies of ASX disclosure rules. The Multiplex litigation was an example of that,” he says.

This leads into the second major issue facing Australian insurance, according to all of the partners interviewed: the growth in class action funding.

Moray & Agnew’s Shayne Thompson says this is something insurance law firms need to keep an eye on, particularly open versus closed class actions.

“What I’ve seen in one class action recently, the funder has very early on made an application to the court effectively to require all people who have not signed agreements [with respect to whether an individual has entered into an agreement with a particular funder] to do so and be bound by the same agreement, basically attacking free-riders,” he says.

“They do this to get an order from the court and they then have to pay a percentage of their settlement payment to the funder. I’m not sure if that’s something that’s actually going to be heard there, but it’s an issue that’s on the radar now, even if that action goes away … It’s an issue that’s going to pop up again.”

In the meantime, nearly every insurance lawyer Australasian Lawyer spoke to agreed that Section 6 needed to be “ironed out”, though if or when this will take place remains up for debate.

“I suspect it isn’t a first-term government issue,” says Thompson. “I don’t think Section 6 is high on [the Liberal Government’s] agenda. Maybe after next year’s election.” AL

Proportionate liability, arbitration & insurance cover – can we have it all?

BACKGROUND There is now a series of authorities which endorse the following propositions:  in the States that permit contracting out of proportionate liability (NSW, Tasmania & Western Australia), contractual indemnities, and certain dispute resolution clauses, can imply an intent on the part of the parties to contract out of the proportionate liability legislation; and  private arbitrations and independent tribunals may not be “Courts” for the purposes of proportionate liability legislation and therefore cannot apply the legislation.

The Standing Committee for Attorney Generals (SCAG) has been considering reform to the various State proportionate liability legislation since 2007. In October 2013, SCAG released some revised model provisions together with an impact statement.

The model provisions were drafted such that proportionate liability would apply to arbitration and external dispute resolution (EDR) schemes by defining the concept of a “Court” to include a “tribunal, arbitrator, and any other entity able to make a binding determination about liability”.

There are compelling arguments both for and against the application of proportionate liability to arbitration/ EDR proceedings.

On the “for” side of the argument, it is desirable to have a consistent application of proportionate liability in both arbitration and litigation, such that neither forum provides a detriment or benefit in the resolution of a dispute.

Further, application of proportionate liability to arbitration/EDR may ensure

that arbitration doesn’t become a haven for those seeking to avoid proportionate liability which might occur particularly when parties to a contract don’t enjoy equal bargaining positions.

Lastly, the application of proportionate liability to arbitration/ EDR would solve the potentially messy gap in insurance cover that can result from a party being ordered to meet a greater liability at arbitration than it might otherwise have been exposed to in litigation.

On the “against” side of the argument, it is suggested that claimants would be disadvantaged because they are incapable of joining concurrent wrongdoers to the arbitration or EDR proceedings and thus unable to recover the full measure of their loss which is inconsistent with the contractual bargain they have struck.

Such claimants would then need to consider commencing separate Court proceedings to recover the balance of their loss which is costly and may generate an inconsistent outcome to that achieved at arbitration. That problem may in turn lead to a trend away from adopting arbitration/ EDR processes over litigation. That outcome would seem inconsistent with the recent efforts to reform domestic arbitration as a viable alternative to litigation.

HOW DOES THIS AFFECT INSURANCE COVER?

any party that has contractually agreed to resolve its dispute by arbitration has potentially acquired a greater liability than it would have at law. That may give rise to an entitlement in the insurer to reduce the extent to which it indemnifies the insured to the same extent as represents the insured’s culpability under proportionate liability.

Quantifying this prejudice is an area ripe for dispute.

Some insurers are now offering “gap” cover to deal with this problem.

In this highly competitive or soft insurance market, this represents a good solution. In a harder market this product might well become unaffordable for many particularly in the SME sector.

CONCLUSION As matters presently stand, SCAG appears to be proposing model provisions that permit individual jurisdictions to elect whether or not proportionate liability is to apply to arbitrations. No matter which side of the argument you are on, each camp would probably agree that uniformity one way or the other is preferable to disunity.

Sean O’Connor Partner, Wotton + Kearney +61 2 8273 9826 sean.oconnor@ wottonkearney.com.au

Many policies of insurance contain an exclusion in respect of liabilities contractually acquired by an insured over and above the liability they would otherwise have at law. If proportionate liability doesn’t apply to arbitrations,

MAY 2014 | 43

GENERAL COUNSEL / SANTOS

Climbing

back to ground It’s a new era for Australian mining as a slew of mammoth projects near completion. Santos general counsel Christian Paech explains how resources companies are viewing the future and the resulting opportunities for law firms

44 | MAY 2014

AUSTRALASIANLAWYER.COM.AU

Pictured: Santos’ GLNG development on Curtis Island, Queensland

Santos’ GLNG project has to be seen to be believed.

The sprawling coal seam gas operation on Queensland’s Curtis Island looks like something out of a sci-fi geek fantasy. Everywhere, cranes and tanks climb the sky and a labyrinth of pipes and metal hunkers into view.

The most remarkable part is that a few years ago the island, which is just off the coast of Gladstone, was home to nothing more than a grazing paddock for cattle. Now this $19bn development is nearing completion and from next year will export 24 million tonnes of gas a year.

The project is a sign of the times for resources companies like Santos. As massive resource-related construction projects that grabbed headlines a few years ago reach production stage, the company is in a critical transition.

“It’s an exciting time in the industry,” says Santos general counsel Christian Paech. “We are hitting a phase that we call transformational growth. The scheduled time for production for GLNG and other big gas projects is coming. This is going to result in enormous changes to our cash flow position and our ability to look at other growth prospects.”

MAY 2014 | 45

GENERAL COUNSEL / SANTOS

The big resource project slowdown

Wandoan On hold: $6bn plans to develop Wandoan coal mine

Port Hedland On hold: A $20bn BHP Billiton plan to lift capacity at Port Hedland

Gladstone On hold: The $20bn Arrow LNG project Hunter region Cancelled: $4bn expansion of Kurri Kurri aluminium smelter

Geraldton Shelved: Mitsubishi plans for a $6bn port and rail development Roxby Downs Shelved indefinitely: Olympic Dam mine expansion

Lawyers should take note. Paech says that like a range of other resources companies that are watching major projects finally hit production, the company is exploring its growth options. These include possible mergers and acquisitions, opportunities to shore up debt and negotiating new development projects.

Paech, who worked 10 years in commercial law firms both here and abroad before joining Santos’ legal team, says that as the company has come closer to finalising its construction projects it has gained a new perspective on how it will approach the future. “[Construction] has been all consuming for us.

We’ve worked hard to get these projects up and running and it has taken years. It’s a new era for us now. We’re hoping it’s one where we are well-placed financially because of the cash flowing from our various energy projects.”

FACT

Deloitte Access Economics estimates that total investment in Australia LNG developments is more than the US government (in 2005 dollars) invested in the space race 46 | MAY 2014

DISPUTE RESOLUTION The company may be counting on better future finances, but it will have to contend with controversy too. As a big player in the extraction of coal-seam gas, Santos has, in cases, employed the drilling technique known as fracking. The technique has stirred a lot of debate among communities who have voiced concerns over its risks to the environment.

“We’re confident we can do it in a safe and sustainable manner, but the way we communicate

Hunter region Canned: Xstrata’s $750m expansion of Ravensworth coal mine

Curtis Island: Australia’s gas Mecca Think a $19bn project is big? Santos is in fact one of three players in Curtis Island gas exporting developments. Origin Energy’s $23bn Pacific LNG project is also on the island, as is the $19.6bn Curtis LNG project, which includes a 540km pipeline from the mineral rich Queensland interior.

Together these projects account for close to $60bn of investment.

that to communities is becoming increasingly important. We have to counter a lot of miscommunication that arises.”

It is known that dispute resolution is common territory for resources companies, largely due to the scale of their operations. Paech says that it is an area where the company continually engages external firms.

Dispute resolution is common territory for resources companies, largely due to the scale of their operations It also touches on a reality for mining companies.

There tends to be an extensive timeframe between the initial phases of a project and when it actually starts bearing fruit for the mining companies. Paech says it highlights just how remarkable it is to be seeing developments like those on Curtis Island nearing production phase. “Projects of this size definitely don’t come around regularly.”

AUSTRALASIANLAWYER.COM.AU

navigate the grey areas so that the company is in a position to achieve its business goals while staying within the legal framework. I think it comes down to lawyers who are good communicators, people who can take a pragmatic approach.

I also personally believe that to get the best outcome you need a high level of trust between lawyers and the company. By necessity, that requires a long-term relationship. It also requires an understanding that you’re in something together.

Success and failure is shared equally. I don’t think you can expect that understanding appointing lawyers ad hoc.

In his own words: Christian Paech Paech explains Santos’ experiences as a client of law firms AL: In what areas has Santos been engaging external lawyers?

We engaged externals in promoting the Gladstone LNG project. We had originally purchased its assets from the takeover of a US company called Tipperary and in the process of developing it we sold it down to oil and gas majors, such as Total, Kogas and Petronas.

That involved a huge amount of work.

Generally speaking, issues around oil and gas remain an in-house function, but we engage external lawyers for all the areas we don’t transact in normally.

This can include areas such as project financing, for example. This is obviously not a core competency of our group, so we require banking and finance lawyers who live and breathe that focus.

With major mergers and acquisitions and similar transactions we go to external law firms for access to large-scale resources. We’re also sometimes involved in disputes. To resolve them we require technical abilities that aren’t available in-house.

AL: What factors usually make you choose one firm over another?

There are very good external legal providers available in Australia and it’s a competitive market, but you tend to look at the individual. It comes down to their understanding of your business and how they can

AL: What do you see as key things lawyers can do to improve the services and advisory they provide?

Firms are usually strong from a technical ability, so that’s not an issue. More often our experience is that lawyers don’t spend enough time listening. It’s not an uncommon characteristic for a lawyer to be a good talker. They’re quick to jump to problem solver mode, but without getting a better understanding of the circumstances and looking at the facts. Lawyers need to listen more and get a greater appreciation for what the issues are and how it relates specifically to the business. Any lawyer can tell you what the law is. The ones that are really good gain an understanding of the complex factual matrix of the business and then apply it to the law.

AL: What are your biggest frustrations when dealing with firms?

Individual lawyers can be committed, work hard and give great advice, but then undo that by giving a surprise on the bill or sending the bill three months afterward.

I understand how the scope of a job might change, making estimates no longer appropriate, but a failure to communicate when that change occurs and reset expectations is a constant frustration.

Again, it comes down to trust. If you’ve got a relationship that’s open and has been built on a reasonable foundation, a lot of that can be solved. You can simply discuss whether a bill is reasonable or what’s changed about it.

I know firms are nervous about giving estimates because they are often perceived as quotes and they don’t want to be locked into them, that’s not where I am coming from. We are sophisticated users of legal services. We understand when things change and why things change. It’s just important that firms have the conversation, not avoid it. The lawyers we like working with are comfortable and confident doing that. AL

MAY 2014 | 47

FEATURE / POSTGRADUATE STUDY

The Postgraduate

REVOLUTION A range of new technologies and a change in learning institutions has transformed the way practising lawyers are studying postgraduate courses, opening a world of possibilities

48 | MAY 2014

Just a decade ago, the way lawyers were studying postgraduate law courses in many institutions was rigid. Lawyers would have to extend a long day’s practise by attending night classes and forgo quality time with children or spouses to study and complete assignments on weekends and time outside the firm.

In 2014, much of that has changed. It’s no secret that online technologies have been a game changer for much of the industry, a development that has been going on for the last 15 years at least, but what is different is that various academic institutions have been making strategic adaptations to the needs of the student market.

“The major change is that there is less need to come to lectures,” says Australian National University’s Gary Tamsitt.

Tamsitt is the director of ANU’s legal workshop and says that enrolments in LLM programs have been up over the last few years. A key driver of that is a push to offer courses that are more flexible.

“There hasn’t been a change in the aptitude that’s required to study a postgraduate degree. The standard hasn’t been affected. There’s simply been a move to make study more convenient.”

ANU, like many Australian academic institutions, offers the possibility of doing a greater amount of learning online and at times that suit students. The typical way of structuring courses is that lawyers only need to attend subjects for a short period of time – typically four days – and are then given the support to do readings and assignments on their own for the rest of a course.

It’s an approach that has also been adopted at the University of Melbourne’s law school, Australia’s top law school according to 2014’s QS World University Rankings for law.

The university’s programs typically have a flexible and responsive course design where semester subjects are taught intensively over five days in small interactive classes. Other subjects are offered at intervals across a 12-week semester.

AUSTRALASIANLAWYER.COM.AU

Melbourne Law School’s associate dean Cheryl Saunders says that even lawyers who wish to study part-time have a wealth of options. Short, focused formats remain the norm. “[We] teach a lot of subjects in intensive formats,” she says, noting that this is significant given the specific areas that many lawyers are now choosing to focus on. “There is considerable interest in specialist commercial law courses in relation to energy and resources law, construction law, competition law and tax law.”

The response to the change in course offerings has been receptive.

Tamsitt says that the feedback from students is that it has helped them establish a more reasonable worklife balance. “They get a greater chance to fit studying in with work, because you can choose the intensity of their study.”

THE GROWTH IN OPTIONS The proof of the law-student market’s response to flexible learning environments is the incredible growth of private institution The College of Law. The

institution has grown to become one of Australasia’s largest providers of practical law courses and part of this growth can be attributed to its development of alternative models of study.

All College of Law training programs have a proportion of tuition delivered by an online learning portal, but the college’s director of applied law courses Angie Zandstra says that, critically, such programs were designed and written specifically for online delivery. This is a departure from learning materials that were simply adapted from face-to-face models.

“What people don’t often realise is that there is a lot of flexibility. We provide our materials online so that people can study in their own time – when they’re on the train or if they’ve got a spare half an hour.”

Zandstra adds that online learning also provides students the opportunity to get the experience they would normally get from face-to-face classes, but it makes it no longer necessary to attend a strict scheduled course.

“Online technology has definitely made a difference,” she says. “It makes it so much more

MAY 2014 | 49

FEATURE / POSTGRADUATE STUDY

QS WORLD UNIVERSITY RANKINGS FOR LAW 2014 1 Harvard University

10 University of Chicago

2 University of Oxford

11 University of California, Berkeley

3 University of Cambridge 4 Yale University 5 New York University 6 Stanford University 7 London School of Economics and Political Science 8 University of Melbourne

50 | MAY 2014

12 Columbia University 13 University College London 14 University of Sydney 15 University of NSW

accessible to practitioners. For lawyers, it’s hard to find time to go to class once or twice a week and they don’t need to do that. We can provide access to materials for someone wherever they are. They don’t need to carry books and other materials around.”

Zandstra says it is also important to point out that online learning is interactive – it is not just a platform for providing reading materials. “If you think about how a lot of law is taught, there is inevitably background reading, and that is something people can do on their own. When they come online, the experience is one where they get to interact with lecturers and other students or work through problems that are experienced in practice. Because of the way we use technology, that’s something they often don’t need to leave their home or office for.”

SPECIALISATION PRESSURES

16 Australian National University Source: TopUniversities.com

While academic institutions have been working through new possibilities for learning, it has become increasingly clear that there is new pressure on lawyers to become higher-skilled and offer their clients a point of difference.

AUSTRALASIANLAWYER.COM.AU

A lot of commentary from industry figures has warned that the client market is finding it harder to know the individual branding of firms and their lawyers. One such commentator has been DLA Piper’s co-chief executive Sir Nigel Knowles who recently warned lawyers that the industry remains too fragmented and it is a situation that cannot last.

Lawyers, he said, are going to need to adapt.

“There are simply too many firms (and too many lawyers) in the market offering the same services without any clear differentiation,” Knowles said earlier this year. “Analysing the changes that have taken place, one starts and ends with a shift in client expectation and requirements. Clients are more demanding buyers of legal services.”

It is not surprising then that academic institutions say they have seen more lawyers pursuing postgraduate qualifications based on a view that it is a way for them to better market themselves to clients.

Postgraduate study is also a way for lawyers to gain greater specialisation in an industry that is becoming more complex.

“The market is becoming very specialised and law

“There’s [an opportunity] to hone legal skills to a more advanced level, expand networks – nationally and internationally” more complex. The issues that clients bring are taking on more complexity than ever before. There’s a feeling that people need more in-depth knowledge and deeper skills, both legal and commercial, than ever before,” Zandstra says.

Tamsitt says he has also noticed a push from firms.

“Our enrolments in LLM courses have been increasing over a number of years. I think large law firms have encouraged their employees to do masters and have paid the fees. They see it as a way to increase their capability and compete. Of course, outcomes vary for students and it varies over time. Some see the benefit immediately. Some don’t see it until a number of years.”

MAY 2014 | 51

FEATURE / POSTGRADUATE STUDY

POSTGRADUATE LAW STUDENT NUMBERS Institution

Students enrolled

AUSTRALIAN CAPITAL TERRITORY Australian National University

2,271

University of Canberra

285

NEW SOUTH WALES Macquarie University

168

University of New England

191

University of NSW

1,513

University of Newcastle

5

University of Sydney

1,678

University of Technology, Sydney

1,060

University of Wollongong

317

QUEENSLAND Bond University

587

Griffith University

254

James Cook University

51

Queensland University of Technology

672

University of Queensland

223

University of Southern Queensland

193

SOUTH AUSTRALIA Flinders University

42

University of Adelaide

58

TASMANIA University of Tasmania

88

VICTORIA Deakin University

26

La Trobe University

185

Monash University

962

RMIT University

5

University of Melbourne

1,661

Victoria University

163

WESTERN AUSTRALIA Murdoch University

108

University of Notre Dame, Australia

5

University of Western Australia

151

TOTAL Source: Good Universities Guide; *excludes Edith Cowan, Southern Cross, Curtin and Charles Darwin Universities and the College of Law

52 | MAY 2014

CUSTOM-MADE EDUCATION Although using postgraduate study as a way to gain a greater understanding of an area of the law is nothing new, Melbourne Law School’s Cheryl Saunders says it is important to remember that specialisation is simply one value of studying further. “There’s [an opportunity] to hone legal skills to a more advanced level, expand networks – nationally and internationally.”

She says an LLM is also a way for lawyers to become familiar with issues they might not have encountered in practice yet. This means that when they eventually do, they are better prepared. “It can expand your horizons, in terms of ideas, [getting a] deeper understanding of legal problems and the solutions to them and likely directions for key areas of the law.”

Even for those that do not pursue a full LLM, there is an opportunity for lawyers to build a stream of courses behind them. The University of Sydney, for example, is one of the many Australian institutions where students can do “single unit study”. The idea is that lawyers can attend classes at a discounted rate and still earn CPD (Continuing Professional Development) or MCLE (Mandatory Continuing Legal Education) points without undertaking assessments.

ALLOCATING STUDY TIME With a greater push for postgrad qualifications, the flexibility that academic institutions are now providing has come at a critical time. The problem that many lawyers who are interested in pursuing further study experience is that their old perceptions of study programs are dying hard. Many lawyers think back to their days as a full-time undergraduate and expect further study will require a fully open schedule.

While it is hard to deny that postgrad study requires a lot of input from lawyers – it is certainly not easy – Zandstra says that perceptions need to meet reality.

“There is definitely a time sacrifice that comes with study. For a lot of lawyers that is often the first barrier they need to get over. We appreciate that lawyers are in practice, so we are flexible. Most people, once they decide to commit to study, work out a study plan and get into a rhythm and if things pop up we can often accommodate them. I think most people handle it well. It’s not necessarily as onerous as people think.

Tamsitt reminds lawyers who are considering taking up a course to keep a sense of perspective.

“What do you have in mind for your career development? If you’re not clear about that you should have a think about it and work out how you want to advance your career before studying.” AL

WWW.AUSTRALASIANLAWYER.COM.AU

Q&A with Monika Relator, Solicitor, Walker Kissane & Plummer, and Graduate of The College of Law Master of Applied Law (Family Law) What motivated you to pursue a career in law?

I have always enjoyed investigative and analytical style of work. Law was one of the few professions that offered the opportunity to use these skills.

What about family law appealed to you?

It’s a very personal area of law. You not only advise clients on their legal rights but can help them through a stressful experience and it is very rewarding when you can help them achieve an outcome.

Has earning your masters helped to further your career?

I found the masters in family law program offered by the College of Law very beneficial to my career. It filled the gaps in my knowledge of family law and provided a thorough understanding of other areas of family law. As it is an applied law program, the course is “hands on” in so far as I was able to apply what I had learned to practice right from the beginning. I found the course content to be extensive which meant that I had in depth “exposure” to a range of cases/scenarios in a condensed period of time which in practice I may not have had for some years.

What advice would you give to recent law grads looking to start their career?

Be a good communicator but learn to listen.

Think laterally and be well organised. Don’t get emotionally involved with your clients but be empathetic towards them. Don’t think that after you graduate from law, you can stop learning when you start working is when you really start to learn. It’s also very important to be able to

work with someone who is prepared to take the time to mentor you.

How have you been able to balance work and studies and family so well?

I have a very supportive family at home and am very fortunate to have wonderful mentors where I work at Walker Kissane & Plummer Solicitors.

Michael Kissane and Christopher Plummer helped me tremendously by providing me with advice, support and guidance throughout the masters program.

What is the best career advice you have ever received?

If you want to be the best in your field of work you have to be 50 per cent better than the best.

Choose a job you love and you will never have to work a day in your life.

What are your long term career goals?

To become an Accredited Specialist (Family Law) in 2015 and eventually move to a partner position.

MAY 2014 | 53

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STATS / IN-HOUSE LAW TEAMS

In-house priorities 3 MOST IMPORTANT FACTORS WHEN LOOKING FOR A FIRM

A global survey of in-house law teams reveals when and how they engage firms 4 BIGGEST CONCERNS

DEALING WITH FIRMS

68%

(ISSUE FOR % OF COMPANIES)

of in-house legal teams expect commercial advice beyond pure legal advice from external lawyers

Costs and fees

Business expertise

Top-rated individuals/ teams within firm

34%

57%

Regulation and compliance

85%

see direct referral as the most trusted source for researching firms

31%

Risk management

Creating value for the company

25%

Anti-bribery and corruption compliance

Source: Global Legal Post General Counsel Excellence Report

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High level case studies Interviews with domestic and international industry leaders and news makers in the industry

Visit www.australasianlawyer.com.au and click on the subscription page 1 54 | AL_HP-advert_Subs.indd MAY 2014

10/04/2014 4:42:56 PM

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Most expensive cities for expat lawyers As the legal industry becomes increasingly globalised, law offices in international destinations are becoming fairly commonplace, but not all locations are equal.

Every year, the Economist Intelligence Unit compares prices in cities around the world in its Worldwide Cost of Living survey to come up with a ranking of which cities are the most expensive.

The 2014 survey shows that Singapore has replaced Tokyo as the most expensive city in the world

10 MOST EXPENSIVE

CITIES

Singapore

Paris, France

Oslo, Norway

Zurich, Switzerland

Sydney, Australia

Caracas, Venezuala

Geneva, Switzerland

Melbourne, Australia

Tokyo, Japan

Copenhagen, Denmark

1

2

3

4

5

6

7

8

9

10

Litre of petrol

$1.73

$2.50

$2.41

$2.06

$1.35

$0.02

$1.96

$1.35

$1.73

$2.18

Bottle of wine

$25.04

$11.45

$17.13

$15.82

$22.58

$22.41

$8.39

$22.28

$12.53

$13.70

20 cigarettes

$9.55

$8.95

$15.44

$8.83

$15.75

$6.36

$8.72

$15.50

$4.45

$7.35

Loaf of bread

$3.36

$8.44

$5.91

$6.19

$4.65

$11.02

$6.38

$4.43

$7.12

$4.82

Rank

10 LEAST EXPENSIVE

CITIES Rank Source: Economist Intelligence Unit. All prices in US$

in which to be an expat worker.

Singapore remains a significant legal market where many Australians and New Zealanders work.

The survey weighs up the cost of various items and contrasts them with prices in New York City to develop a scale for measuring global cost of living.

Demonstrating the sheer scale of living costs worldwide, the statistics below give an indication of the everyday costs in each of the world’s 10 most and least expensive cities.

Riyadh, Jeddah, Bucharest, Panama City, Saudi Arabia Saudi Arabia Romania Rep. of Panam

Algiers, Damascus, Kathmandu, New Delhi, Algeria Syria Nepal India

Karachi, Pakistan

Mumbai, India

122

123

124

125

126

127

128

129

130

131

Litre of petrol

$0.13

$0.13

$1.75

$1.17

$0.28

$0.78

$1.24

$1.14

$1.14

$1.21

Bottle of wine

n/a

n/a

$4.12

$7.05

$11.40

$6.47

$18.98

$16.33

$13.73

$20.59

20 cigarettes

$2.40

$2.31

$4.16

$4.50

$4.89

$1.58

$1.53

$2.20

$1.56

$1.53

Loaf of bread

$1.78

$1.61

$2.07

$3.53

$2.44

$1.88

$1.26

$1.05

$1.59

$0.91

MAY 2014 | 55

OPINION

What GCs really want Certain key factors driving in-house counsel’s external spend may surprise private practitioners, says Trish Hyde

Trish Hyde Hyde is the current CEO of the Australian Corporate Lawyers Association and has over 15 years of corporate leadership experience

Future firms, new law, AFAs… There are a number of terms being bandied about predicting an imminent seismic shift in the delivery of legal services. And while research indicates that change is happening and will continue, we are yet to reach the tipping point. There is a journey to be undertaken and while some will evolve fast, others will be left behind.

So, what are the key factors driving in-house counsel’s external spend that private practitioners need to understand?

Let’s start with some basic statistics. The Australian Corporate Lawyers Association asked GCs to rate their main law firm provider on key aspects of the relationship. Given that this is the most senior representative of the organisation rating the firm they use most, the findings are not good for the firms:  78% of respondents agree their main firm provides commercially applicable advice. However, this means one in five GCs do not see the advice they receive as meeting their needs.  62% of respondents agree their main firm is upfront and transparent about pricing, while 57% agree their main firm provides realistic quotes.

This indicates that two in five clients do not believe a quote provided to them.  46% of respondents agree their main firm provides advice at a reasonable price. Therefore, more than half of the GCs are not seeing value for money.  21% of respondents agree their main firm offers alternative billing methods that work. So, if only one in five GCs is getting a good deal, what will the other four do?

56 | MAY 2014

It can be tempting to assume that your own firm is immune to these statistics. You’ve got great relationships and the best people in town. What you may not consider is that receiving continuous work from a client is not the same as brand loyalty. Rather, it could just be a client waiting for someone to develop a service that better suits their needs.

So what can a law firm do? And what is on the in-house counsel’s wish list?

1. FEES It is no secret that the first item on the wish list is hourly billing. Only 4% of GCs think that hourly billing is an appropriate method, and yet this is an area that is not being addressed. Alternative fee arrangements that offer a discounted rate are generally perceived as no more than hourly billing in another guise.

To clearly address this issue means throwing out the billable hour altogether and becoming true service providers that scope and cost the project according to the client’s needs. In doing this, the firm will have to apply the following principles: scope the work, assess the resources, agree on the

Only 4% of GCs think that hourly billing is appropriate, yet this is not being addressed terms, manage the project to time and on budget, and evaluate the performance.

2. VALUE What is value to the client? In short, value is the balance of time, quality and price required by the client so that they can demonstrate their value to the organisation.

To conclude, it is all about the mindset you choose. This can be illustrated by the fact that managing partners of law firms in the US are on exhibition stands at in-house conferences. For them it’s all about meeting GCs in a neutral and fun environment – and putting their best people out there. It’s a startling difference in the approach of delivering legal services and one that Australian firms could learn from! AL

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