australasianlawyer.com.au Issue 1.3
50 early-career lawyers who are making a name for themselves in the Australian legal market PAUL MEADOWS LEADING WESFARMERS' LEGAL TEAM
JOHN NERURKER ON GROWING A NATIONAL LEGAL BRAND
IP'S REINVENTION PRACTITIONERS ON IP'S EVENTFUL YEAR
EDITOR’S LETTER / 1.1
1 | APRIL 2014
AUSTRALASIANLAWYER.COM.AU
Contents
24 COVER STORY
50 young lawyers already making a name for themselves
12
IN-HOUSE PROFILE
FEATURES 16 | IP’s reinvention Firms respond to the biggest changes to IP law in two decades
46
36 | Melbourne makes its move After several quieter years, Melbourne’s legal market has been picking up the pace
42 46 | Law of the jungle Solicitor Anu Chengappa battles corruption, prejudice and the timber mafia to make sure the tigers of India survive 42 | The rise and rise of Mills Oakley CEO John Nerurker talks about growing a single-office firm to a national legal brand
56 | Playing the age card The words every early-career lawyer hates hearing
Mastering the method Wesfarmers group general counsel Paul Meadows shares his approach to building and leading a highperformance legal team
REGULARS 04 | News analysis 06 | Deals round-up 10 | Appointments 54 | Legal insight: The next generation of lawyers
SEPTEMBER 2014 | 1
EDITOR’S LETTER / 1.3
UP FOR THE CHALLENGE
COPY & FEATURES EDITOR Kathryn Crossley
Kathryn Crossley
In the eyes of some, the legal profession is stuck in its ways and resistant to change. There’s all that legal Latin, the traditional wigs and robes, and the ubiquitous shelves of leather-bound tomes in law firm offices. Yet in reality, law firms and lawyers are constantly responding to new regulations, evolving work practices, fluctuating market conditions and changing client needs. Ours is a profession built on change. In this issue of Australasian Lawyer, our Rising Stars feature profiles 50 young lawyers whose talent, community contributions and innovation are already getting them noticed. Each generation of lawyers leaves its mark on the profession, and no doubt many of these faces will be leading law firms through the changes and challenges facing the industry over the coming years. The GFC brought on an incredible shift in the legal services market, and the changes in the Australian legal landscape present incredible opportunities to the firms and lawyers that are willing to make the most of the new normal. Speaking of change-makers, in this issue we also chat with Mills Oakley CEO John Nerurker about how his firm grew from a partnership of 16 to 58 in just 10 years, and why he threw out the rule book for partner promotions (page 42). Few would argue Nerurker is not a champion of change. Moving in-house, when Paul Meadows joined Wesfarmers in 2009, his role of group general counsel was a newly created one. On page 12, he too discusses the rapidly changing legal landscape and what that means for leading one of the nation’s top in-house teams. These lawyers and many others in this issue prove that our profession is well and truly aware that, as John F. Kennedy said, change is the law of life, and there are always opportunities to re-evaluate, reinvent and do things differently… usually better.
CONTRIBUTORS Mackenzie Pickert, Renu Prasad PRODUCTION EDITORS Roslyn Meredith, Moira Daniels, RIchard Wood
ART & PRODUCTION DESIGN MANAGER Daniel Williams DESIGNERS Kat Vargas, Loiza Caguiat
SALES & MARKETING SALES MANAGER Paul Ferris MARKETING EXECUTIVE Alex Carr TRAFFIC MANAGER Maria Katsiotis
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 Kathryn Crossley tel: +61 2 8437 4702 kathryn.crossley@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
Kathryn Crossley, editor, Australasian Lawyer
CONNECT
Correction: In Blind Courage (AL issue 1.2), Darren Fittler’s name was spelt incorrectly. Australasian Lawyer apologises for the error.
Contact the editor:
kathryn.crossley@keymedia.com.au
2 | SEPTEMBER 2014
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NEWS ANALYSIS
The east is back Has Sydney assumed Perth’s crown as the most active market for legal hires? Renu Prasad investigates “Last month, the beady-eyed folk who notice the comings and goings in the legal market observed something unusual on the website of King & Wood Mallesons. A job advertisement. For a senior associate. In M&A, no less. Such a sight would have been nothing unusual during pre-GFC times, but we’re reliably informed that in the current environment it is akin to the first blossom after a cold winter – a tentative return to the recruitment market from a top tier firm after a conspicuous period on the sidelines. Other firms are also reported to be hiring in the corporate/M&A space. Still, no one’s getting too excited just yet. “M&A and corporate were areas quite badly cut during the GFC, so with the market improving, that’s why the recruitment market is quite busy in that space,” explained Steve Cole, managing director of Signature Consulting. The contrast between the current market and pre-2009 is obvious. “There’s a big difference to being out in the market and happy to take on one or two people, whereas in the past firms would add five or six people to the team in a short space of time. It is different – now it’s a lot more considered and planned,” comments Mahlab managing director Lisa Gazis. Notwithstanding those cautionary comments, recruiters are reporting a general improvement in
4 | SEPTEMBER 2014
the employment market for lawyers. “There’s more confidence in the market; I think, from a revenue point of view, there’s definitely been an improvement, slowly but surely – not a huge ramp up but we’ve been pleased with how the last six to nine months have been,” said Cole. Gazis agrees. “It’s definitely improving, there are more jobs, both permanent and contract, private practice and in-house, however we are coming off a low base. I hate the word caution but there is a bit of caution out there. We are seeing a few opportunities; not necessarily massive salaries are being offered but people are able to move and are getting conservative increases to make those moves.” Burgess Paluch director Doron Paluch is another to offer a cautious diagnosis of “slow but sure” improvement. However, he offers a new twist: he believes that Sydney has now overtaken Perth as the nation’s most active market. “In Sydney we are seeing the top and second tier firms hiring in areas that haven’t been busy for years,” he said. “This is good news as it seems to confirm a long awaited recovery in the market. When law firms are busy as they are in Sydney in areas like corporate, project and structured finance and construction, this should be a sign of an economy getting back on track.”
ROUND THE MARKETS
As Sydney slowly rises off a low base, Perth is moving in the opposite direction,
AUSTRALASIANLAWYER.COM.AU
albeit off a higher base. “I would describe Perth as a bit all over the place,” said Paluch. “There are some pockets of activity; some firms seem to be flying in some areas but other similar firms might be quiet in those same areas. Perth … is a jurisdiction which is trying to work itself out post mining boom. But we should keep in mind that Perth has been coming down from a great height. A few years ago Perth was on an extraordinary high.” Gazis agrees that Perth has moved on from the boom days when WA lawyers were eyeing the prospect of higher salaries than their Sydney counterparts. “A more subdued mining industry in Perth has meant lesser jobs and a slower job market,” she said. “The greater business optimism since the federal election in October 2013 and steady improved market activity on the eastern seaboard, particularly in the Sydney market, has meant that the Sydney market – as well as Melbourne – has experienced an increase in job opportunities for lawyers in both private practice and in house.” However, this is not a case of one boom replacing another. In fact, it would be overly generous to describe the Sydney and Melbourne markets as any kind of boom at all. “It is still not a buoyant or booming market,” concedes Gazis. “Certainly, many staffing freezes have lifted, there are fewer redundancies and more roles are being offered on a contract and permanent basis. These are all very positive signs for lawyers working in these centres and there does not appear to be any reason that these markets will not continue to grow as the economy further strengthens.” Paluch is lukewarm on Melbourne and Brisbane. “Melbourne and Brisbane are okay,” he said. “The markets are not great but there is positive movement. To be frank my assessment is that the general feeling in Melbourne and Brisbane is that things are continuing to slowly improve – that sentiment has maintained throughout most of this year so we are seeing a slow
BLEAK OUTLOOK FOR SENIOR ASSOCIATES The real victims of the last few years of sluggish economic growth could be the current generation of senior associates, according to some sources who claim that firms slimming down their partner ranks are leaving their next generation of leaders out in the cold. “There are increasing stories that firms just can’t give these guys any kind of timeline for progression – not two to three years, nothing at all,” said one source, who preferred to remain anonymous and is not named anywhere in this analysis. “Most of the senior associates I talk to feel that they can’t put their finger on when they’ll get a decent crack at partnership. The growth model is dead: imagine sitting in a top tier firm as a senior associate waiting for a promotion, with hundreds in the same position.” While much has been written about top tier talent moving to mid-tier firms, this is a complicated move as top tier senior associates and special counsel are often commanding higher salaries than many mid-tier partners. The options are to take a substantial haircut, or attempt to join a mid-tier firm as a partner. But here again, difficulty arises. “I can’t see any skills-based promotion – it’s all about the revenue stream, whether at your own firm or elsewhere,” said the source. And it is questionable whether senior associates would have had the opportunity to cultivate a portable practice in a top tier firm: “If you’re at a top tier firm, unless you’re working for a particularly nice partner who wants you to grow your practice, you’re unlikely to have had much exposure to the client.” However, other recruiters expressed the view that senior associate hires were still being sought by firms looking to improve their offering in strategically important areas and not necessarily motivated by portable practice considerations. but sure improvement across the board. There are inconsistencies between firms – I don’t think there’s a great deal of consistency in what the law firms are looking for in those two cities. Sydney is carrying the torch at the moment.” And while boutique firms are yet to make their impact felt in the recruitment stakes, Cole predicts that these firms will be the market’s next generation of movers and shakers. “I think boutiques will play a huge part in the legal market – there are a lot of them just starting up but they will have a positive effect. We’re keen to work with them,” he said. A trend to watch into the future. AL
SEPTEMBER 2014 | 5
NEWS / DEALS
Deals round-up $1.37bn Aristocrat acquisition of Video Gaming Technologies Allens advised on Aristocrat’s acquisition of Tennessee based Video Gaming Technologies, which was funded through $1.4bn in new debt facilities and an underwritten, institutional placement of $375m. The new facilities included a US$1.3bn seven year term loan B, and is part of a growing trend of Australian companies seeking more flexible and competitively priced funding from US term loan B providers. The acquisition forms part of Aristocrat’s North America growth strategy. Aristocrat also recently acquired US gaming products and systems company Paltronics, with advice from Armstrong Teasdale.
Transaction
Value (A$)
Adviser
Client
Lead lawyer(s)
Alkane Resources equity raising
$10m
Ashurst
Alkane Resources
Roger Davies
Amcom Telecommunications Limited placement of shares
$40m
Clayton Utz
Amcom Telecommunications Limited
Mark Paganin
Amobee Group acquisition of Adconion Media Group
US$235m
Johnson Winter & Slattery
Amobee Group
James Rozsa, Christine Ecob and Jan Dransfield
APN Newmark joint venture property acquisition
$52m
Hall & Wilcox
APN Property Group and Newmark Capital
Tony Macvean, Mark Inston and John O’Kane
Aristocrat Leisure Limited acquisition of Video Gaming Technologies
$1.37bn
Allens
Aristocrat Leisure Limited
Vijay Cugati
Asaleo Care’s new banking facilities and material contracts in connection with its IPO
$350m
Herbert Smith Freehills
Asaleo Care
Hayley Neilson, Kristin Stammer, Damien Hazard and Michael Ziegelaar
Asaleo Care IPO
$655.8m
Minter Ellison
Asaleo Care
Jeremy Blackshaw
Herbert Smith Freehills
Joint lead managers: Citigroup Global Markets Australia, Macquarie Capital and Merrill Lynch Equities
Philippa Stone, Philip Hart and Lauren Magraith
$655m Asaleo Care IPO
B2Gold Corp and Papillon Resources Limited Merger
US$570m
K&L Gates
B2Gold Corp
Simon Salter, Riley Kemp and Philip Murray
Asaleo Care raised $655.8m from its June IPO and ASX listing, making it Australia’s second biggest IPO for 2014 thus far. It is also the Asia Pacific’s biggest ever forestry and paper sector IPO. Minter Ellison advised Asaleo on the IPO, while Herbert Smith Freehills provided advice on $350m in new banking facilities. Minter Ellison has acted for Asaleo Care since 2004, and HSF has advised Asaleo Care in relation to its debt facilities since 2012.
Baosteel Resources Australia and Aurizon Operations joint bid for Aquila Resources
$1.4bn
Minter Ellison
Baosteel Resources Australia
Adam Handley
Caltex Australia purchase of fuel retailing and distribution business from Scott Group of Companies
$95m
Johnson Winter & Slattery
Scott Group of Companies
James Marshall, John Kench, Richard Gelski and Ruveni Kelleher
Maddocks
Caltex Australia
Duncan Hall and Stephen Schmidhofer
6 | SEPTEMBER 2014
Gilbert + Tobin Caltex Australia
Gina Cass-Gottlieb and Paula Gilardoni
Clermont Coal Joint Venture sale
$1bn
Ashurst
Mitsubishi Corporation
Ian Williams
Coles launch of life insurance offering
n/a
Herbert Smith Freehills
Coles
Brendan Earle
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Transaction Expedia proposed acquisition of Wotif
Value (A$)
Adviser
Client
Lead lawyer(s)
$703m
$703m
Clayton Utz
Wotif
Andrew Hay and Tony Lalor
Proposed Wotif Acquisition
King & Wood Mallesons
Expedia
David Friedlander, Jason Watts and Philipp Girardet
Wachtell Lipton Rosen Katz
Expedia
Andy Nussbaum and Lina Tetelbaum
Fu Wah International Group purchase of Park Hyatt Hotel Melbourne
$130m
Minter Ellison
Fu Wah International Group
Lloyd Baggott
Generation Healthcare capital raising and property transactions
$50.3m (capital raising) and $83.5m (property transactions)
Hall & Wilcox
Generation Healthcare
John Hutchinson, Natalie Bannister and John O’Kane
Greencross Limited entitlement offer $120m and acquisition of City Farmers
Herbert Smith Freehills
Greencross
Philippa Stone, Rob Finlay and Baden Furphy
Healthscope Limited IPO
Not yet listed
Gilbert + Tobin
Joint lead managers: Macquarie Capital, UBS AG, CIMB Capital Markets, Credit Suisse, Goldman Sachs Australia and Merrill Lynch Equities
Peter Cook
InterOil Corporation sale of downstream businesses and syndicated loan
US$525m (sale) US $300m (loan)
Gadens
InterOil Corporation
Charles Cowper and Helen Ord
Karoon sale of Western Australia Browse Basin exploration permits
US$800m
K&L Gates
Karoon Gas Australia Limited
Clare Power
Magnum Hunter Resources Corporation intended takeover offer for Ambassador Oil and Gas Limited
Undisclosed
Norton Rose Fulbright
Magnum Hunter Resources Corporation
Shaun Clyne
Mantra Group Limited IPO
$239.1m
Gilbert + Tobin
Mantra Group Limited
Andrew Crook
Herbert Smith Freehills
Joint lead managers: Macquarie Capital and UBS AG
Philippa Stone and Lauren Magraith
The Expedia group proposes to acquire 100% of the fully-diluted share capital of Wotif Group by scheme of arrangement. The acquisition is subject to ACCC approval, and if approved, the purchase will be finalised in late 2014. The deal will assist Expedia’s Asia Pacific expansion plans, and follows on from last year’s US$632m acquisition of a majority stake in German site Trivago.
$239m Mantra Group IPO Australia’s second largest accommodation chain listed on the ASX in June, after its previous IPO attempt was cancelled in March this year. The listing was expected to raise up to $239.1m, giving an implied market capitalisation of $449m.
SEPTEMBER 2014 | 7
NEWS / DEALS
Value (A$)
Adviser
Client
Lead lawyer(s)
Mermaid Marine Australia Limited new debt facilities
US $227m
Allens
ANZ and NAB
Ben Farnsworth
Parnell Pharmaceuticals Holdings Ltd NASDAQ IPO
US$50m
DLA Piper
Parnell Pharmaceuticals
Andrew Gilbert, David Schwartz, Kirsten O’Donnell, Julia Kovacs, Linda Thomas, Michael Greenberg, Rita Patel, David Morris, Simone Mitchell, Leah O’Brien and James Newnham
Proposed acquisition of Goodman Fielder Limited by Wilmar International Limited and First Pacific Company Limited
$1.9bn
Gilbert + Tobin Wilmar International Limited and First Pacific Company Limited
Peter Cook, Rachael Bassil and Adam D’Andreti
Range Resources services deal with Landocean Energy
US$400m
Herbert Smith Freehills
Range Resources
Hilary Lau, Simon Reed and John Balsdon
Ridley Corporation and Sanctuary Living JV for proposed Moolap site development
Undisclosed
Clayton Utz
Ridley Corporation
Michael Linehan
Shell Energy Holdings Australia sell-down of Woodside Petroleum shares
$6.1bn
Herbert Smith Freehills
Woodside Petroleum
David Gray and Philippa Stone
Clifford Chance
Shell
Lance Sachs
Herbert Smith Freehills
UGL Limited
Philippa Stone and Philip Hart
Transaction
$6.1bn Shell sells down Woodside Petroleum Shares Royal Dutch Shell’s Australian subsidiary sold down its interest in Woodside Petroleum in June. The buy-back is worth $2.9bn, with an underwritten sell-down for an additional $3.2bn. Herbert Smith Freehills advised longstanding client Woodside. HSF has previously acted for Woodside on the sale of its interest in Otway Gas Project, and advised on elements of the Browse LNG development.
$1.01bn
UGL Limited sale of DTZ to TPG led consortium
$1.215bn
Gilbert + Tobin TPG Asia, PAG Asia Capital and Ontario Teachers’ Pension Plan
Wesfarmers sells insurance broking business Allens acted for longstanding client Wesfarmers on the $1bn sale of its insurance broking and premium funding business to US risk management and broking company Arthur J. Gallagher & Co. The business includes operations in Australia, New Zealand and the UK, which added to the complexity of the transaction, as did the secured $220m multicurrency debt facility entered into by the insurance broking business. The deal, which was completed in a tight timeframe, was one of the largest trade sales of FY2013/14.
8 | SEPTEMBER 2014
University of Melbourne student accommodation project
Undisclosed
Neil Pathak John Schembri, Cameron Whittfield, Andrew Bullock and Peter Feros
DLA Piper
Campus Living Villages Alex Guy, Kate Papailiou, Jane Baddeley and David Andrewartha
Maddocks
Watpac Construction
Simela Karasavidis
Vocation Limited acquisition of Endeavour College of Natural Health
$84m
Johnson Winter & Slattery
Vocation Limited
James Rozsa, Byron Koster and Jim Hunwick
Wesfarmers sale of insurance broking business to Arthur J. Gallagher & Co
$1.01bn
Allens
Wesfarmers
Tom Story, Andrew Pascoe, Julian Donnan and Rob Pick and Ben Farnsworth
Xanadu Mines Ltd and Mongol Metals LLC acquisition of 90% interest in Oyut Ulaan LLC coppergold exploration project
US$14m
Minter Ellison
Xanadu Mines
Elisabeth Ellis
Firm Profile
THE NAKED(BUS) TRUTH:
USING TRADE MARKS AS KEYWORDS There is little doubt that Google AdWords (and the careful selection of keywords) can be a powerful tool to increase online business and provide a competitive edge for businesses. However, what limits trade mark law places on the selection and use of third party trade marks as keywords is still uncertain in New Zealand and Australia as there have been no cases directly decided on this point. In February this year, some certainty was finally provided (at least in New Zealand) with the help of a case involving Nakedbus. The High Court of New Zealand issued a decision about the unauthorised use of trade marks as keywords in connection with Google AdWords (Intercity Group (NZ) Ltd v. Nakedbus NZ Ltd [2014] NZHC 124 (Feb. 12, 2014)). Incidentally, this was also New Zealand’s first substantive decision regarding Google AdWords and the use of keywords. The case involved two of New Zealand’s largest long-distance bus companies, InterCity and Nakedbus. InterCity (the successor of the former New Zealand Railway Corporations’ bus services) had traded in a near monopoly position. In 2006, Nakedbus was founded to directly challenge InterCity’s dominant position in the New Zealand market. From its launch, Nakedbus pushed the envelope by using the words “inter city” in their advertising to attract customers and take market share from InterCity. A battle ensued between the parties for the next few years, which reached fever pitch in 2012 when Nakedbus embarked upon a major Google AdWords campaign. Nakedbus purchased the keywords “inter city” and 87 variants as keywords, which generated advertisements containing the words “inter city” when the search term “inter city” (or variants) were entered into the Google search engine.
Nakedbus took the view that the term “inter city” was descriptive for city-to-city bus services, despite the fact InterCity had a registered word mark for INTERCITY. Not surprisingly, InterCity issued proceedings against Nakedbus on grounds including trade mark infringement, passing off and breaches of the Fair Trading Act 1986.
things a step further by providing a decision directly on point about use of a third party’s registered trade mark. What, if any judicial notice is taken from the New Zealand decision remains to be seen, but it may nevertheless provide some guidance about how an Australian court could decide a similar case.
The High Court held that Nakedbus’s purchase of the keywords was “use in the course of trade” in terms of Section 89(1) of the Trade Marks Act 2002, but did not amount to trade mark infringement. The reasoning largely turned on the way Google AdWords function. The purchase of the keywords was not seen or known or understood by consumers and could not be “taken” as anything by consumers, let alone “taken as being use as a trade mark”; thus, there was no use of a sign “likely to be taken as being use as a trade mark” in terms of Section 89(2) of the Act. In short, the High Court held that use of a third party’s registered trade mark as a keyword is not, of itself, trade mark infringement in New Zealand.
Interestingly, the New Zealand case is also consistent with how Google views use of third party trade marks. For example, Google changed its own policy for keywords that are trade marks in New Zealand and Australia (as well as for China, Hong Kong, Macau, Taiwan, South Korea and Brazil) in April 2013, which brought its policy in line with the policy it applied to the rest of the world. Prior to this, Google would consider complaints from registered trade mark owners when their marks had been used as a keyword by a third party. Google has also announced further changes to its policy for New Zealand and Australia. As from 27 July 2014, Google will allow resellers to use trade marks as keywords, which brings Australasia into line with Canada, Ireland, the United Kingdom and the United States.
However, it was held that Nakedbus did nevertheless infringe InterCity’s registered trade mark via the text of the advertisement that resulted from use of the “inter city” keywords (eg “inter city buses from $1 – We’ll beat any inter city fare”) and follow-on use on Nakedbus’s website. The High Court held that such use was both “use in the course of trade” and “likely to be taken as being use as a trade mark”. The conduct was also likely to deceive and confuse and the claims of passing off and breaches of the Fair Trading Act were also made out. The New Zealand case therefore aligns with recent Australian decisions (in so far as the text from advertisements generated by keywords is concerned), but takes
We now wait to see if the Australian Courts (and the New Zealand Court of Appeal*) agree with Google or will side with trade mark owners when it comes to use of third party trade marks as keywords. *the decision has been appealed
Hamish Selby Hamish Selby is a senior associate in the Auckland office of Buddle Findlay, one of New Zealand’s leading law firms. Hamish is a specialist intellectual property lawyer with extensive experience advising clients in New Zealand, Australia and overseas. He can be contacted by phone on +64 9 363 0703 or email hamish.selby@buddlefindlay.com
www.buddlefindlay.com
NEWS / APPOINTMENTS
Presented by
Appointments LATERAL PARTNER APPOINTMENTS NAME
PRACTICE AREA
LEAVING
GOING TO
Adrian Smith
Corporate
DLA Piper
McCullough Robertson
Adrienne Parker
Construction and major projects
Clayton Utz
Norton Rose Fulbright
Alex Ding
M&A and capital markets
Allens
Lander & Rogers
Alex McKellar
Construction
Moores Legal
M+K Lawyers
Andrew Corletto
Corporate
Kelly & Co
Minter Ellison
Andrew Hudson
International trade
Hunt & Hunt
Gadens
Angus Foley
Infrastructure
Clayton Utz
Ashurst
Brooke Glastonbury
Property
Brown Wright Stein
M+K Lawyers
Cheryl Weston
Commercial litigation
Eakin McCaffrey Cox
Mills Oakley
Darren Fooks
Energy and resources
Clayton Utz
Baker & McKenzie
David Bradley
Corporate
Lander & Rogers
Piper Alderman
David Cornwell
Corporate
Gadens
Piper Alderman
Heinz Lepahe
Workplace relations and safety
Australian Business Lawyers & Advisors
HWL Ebsworth
Helene Lee
Employment and labour law
Logie-Smith Lanyon
Norton Rose Fulbright
Hugh Watson
Construction
Corrs Chambers Westgarth
Moores
James Lawrence
Intellectual property and technology
King & Wood Mallesons
Piper Alderman
Jo Daniels
Competition, energy and resources
Allens
Baker & McKenzie
John King
Energy, infrastructure and resources
Clayton Utz
K&L Gates
Justin Madden
Property
Henry Davis York
McCullough Robertson
Kelly Alcorn
Planning, environment and government
Holding Redlich
HWL Ebsworth
Liam Prescott
Litigation and regulatory
HopgoodGanim
DLA Piper
Lisa Jarrett
Corporate, IP and technology
Kelly & Co
Minter Ellison
Lisa Merryweather
Corporate
Arnold Bloch Leibler
Allion Legal
Michelle Levy
Superannuation, life insurance, distribution, financial services
King & Wood Mallesons
Allens
Nathan Hodge
Superannuation
Minter Ellison
King & Wood Mallesons
Peter Jones
Intellectual property and technology
Gilbert + Tobin
DLA Piper
Philip Christensen
Energy and resources
Whitehaven Coal
Baker & McKenzie
Richard Johnson
Restructuring and insolvency
Minter Ellison
HWL Ebsworth
Ross Levin
Workplace relations
Rigby Cooke
Mills Oakley
Ruth Stringer
Superannuation
Lander & Rogers
King & Wood Mallesons
Simon Bellas
Global disputes
Norton Rose Fulbright
Jones Day
10 | SEPTEMBER 2014
AUSTRALASIANLAWYER.CO.NZ
PARTNER PROMOTIONS FIRM
LAWYERS PROMOTED
Allens
Kate Towey, Linh Bui, Peter Haig
Allion Legal
Ivan Armeli
Barry.Nilsson.Lawyers
James Steel
Cooper Grace Ward
Annie Smeaton, Genevieve Dee
Gadens
Aaron Gadiel
Gilbert + Tobin
Tim Gordon
Henry Davis York
Katie Higgins
Holding Redlich
Kathryn Howard, Stephen Natoli , Trent Taylor, Vanya Lozzi
HopgoodGanim
Ian Hughes
King & Wood Mallesons
Cate Nagy, Emma Costello, Malcolm Brennan, Peta Stevenson, Rachael Lewis, Samantha Kinsey, Travis Toemoe, Will McCosker
Kliger Partners
Daniel Kovacs, Darren Brown
Lander & Rogers
Aaron Goonrey, Jane Fiske, Simon Ellis, Steve Robinson, Terry Brigden
Maddocks
Timothy Atkin, Chris Cantor, Angela Wood
McCullough Robertson
Alex Hutchens, Dan Collins, John Ioannou, Michelle Sirasch
Mills Oakley
Dan Mackay, Gavin Douglas, Harry Giannakidis, Tim Cox
Minter Ellison
Amanda Story, Andrew Orford, Glen Sauer, Glen Ward, Harriet Eager, Lee Rossetto, Melinda Smith, Peter Mitchell
Moores Legal
Catherine Brooks
Wotton + Kearney
Heidi Nash-Smith, Raisa Conchin
Judge returns to law firm life
Former judge Kenneth Raphael is getting reacquainted with working life on the other side of the bench. After almost 14 years as a judge of the Federal Circuit Court of Australia (previously the Federal Magistrates Court), he joins Sparke Helmore as a consultant in the firm’s government practice. Raphael, who was one of the first appointments to the Federal Magistrates Court when it opened in 2000, has also worked as an acting judge of the District Court of NSW and a judicial member of the NSW Equal Opportunity Tribunal. Prior to his time with the judiciary, he was a litigation and insolvency partner at predecessor firms of Ashurst, and worked in both Australia and the UK. In his new role as consultant, Raphael will predominantly be advising public sector clients on strategies and recent developments in administrative law and commercial litigation matters.
Mahlab Report 2014 Out Now. Download your free copy from www.mahlab.com.au/survey2014 www.mahlab.com.au Sydney (02) 9241 1199 Melbourne (03) 9629 2111 AD.indd 12
5/08/2014 12:05:27 PM | 11 SEPTEMBER 2014
PROFILE / PAUL MEADOWS
“We put in place panel arrangements that have simplified the briefingout process, cut down costs and ensured that we have the right lawyers for the right work�
Mastering the method:
Paul Meadows, Wesfarmers group general counsel
12 | SEPTEMBER 2014
AUSTRALASIANLAWYER.COM.AU
Wesfarmers group general counsel Paul Meadows talks to Mackenzie Pickert about standing at the helm of one of the nation’s top in-house teams Becoming the general counsel at Australia’s largest private employer requires a suitably impressive resume – and Wesfarmers’ Paul Meadows certainly has it. The former Linklaters London lawyer became a partner at Allens Arthur Robinson in 1989, where he served until his move to the retail conglomerate in 2009. From 2003–06, Meadows served as co-head of the firm’s commercial litigation practice group and worked on some of the country’s most high-profile transactions. For many years, Meadows was named in Chambers Global as one of the leading litigation lawyers in Australia. However, despite decades of success in private practice, he accepted the role of group general counsel at Wesfarmers five years ago and hasn’t looked back since. “I accepted the newly created role of group general counsel at Wesfarmers in 2009 because I was asked by the chief executive to do it and because, after 30 years in private practice, I believed it would provide me with an opportunity to undertake a broader commercial role and to work with people that I knew and respected at a company which I held in very high regard,” Meadows tells Australasian Lawyer. The Wesfarmers legal team covers an incredibly diverse range of business operations, including supermarkets, department stores, home improvement and office supplies, coal mining, financial services, chemicals, energy, fertilisers, and industrial and safety products. “What sets the company apart a little from others, at least within this jurisdiction, is the portfolio management aspect,” says Meadows. “The company operates within a conglomerate model and has a longterm investment perspective. Having said that, the way in which we organise ourselves is not dissimilar to other large publicly listed companies. We have a mix of both generalists and specialists with particular subject matter expertise.” At the company’s Perth headquarters, dedicated M&A/commercial litigation teams service the entire Wesfarmers group, while in Melbourne at Coles in Tooronga, another team services the old Coles group retail divisions, as well as lawyers scattered throughout
other divisions. However, the team’s headcount remains surprisingly small – just 40 lawyers and 10 support staff. “The bandwidth of the legal team is very broad, as it needs to be given the scale and complexity of the company’s operations,” says Meadows. “The team is comparatively small and one of the ways we deal with that is by briefing out judiciously to external firms. We put in place panel arrangements in 2011, which have simplified the briefing out process, cut down costs and ensured that we consistently have the right lawyers for the right work. We have four top tier firms which we use for strategic M&A and commercial work. The panel also covers banking and capital markets, competition law, litigation, intellectual property and other areas where we require specific expertise. There is significant diversification within the panel; the mid-tier and niche firms on it have particular expertise in some areas which is at least commensurate with that of the top tier firms and very competitive costs structures.”
DEVELOPING A HIGH-IMPACT TEAM Having such a small team working on such a vast range of business operations means Meadows needs to be incredibly selective when it comes to employing high-quality staff. “One of my roles is to continue to build and develop a high-performance legal team,” he says. “As well as undertaking current work and dealing with critical issues as they arise, it is important that we assist the businesses in understanding the complex web of changes in laws and regulation which may affect them in the future.” Meadows believes a sound grasp of legal issues and a “mastery of the method”, in terms of being able to assemble and analyse facts to provide legal advice, are the basic principles key to all lawyers, both within firms and in-house. “We would like to think our legal team’s strengths include that we are very responsive, collaborative, collegial, commercially focused and consistently promote flexibility and diversity,” he says. Meadows believes Wesfarmers – and the wider
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PROFILE / PAUL MEADOWS
Australian commercial space as a whole – is better placed now to recruit well-qualified and talented young lawyers than it has ever been. “[This is] firstly because of the breadth and depth of legal work which we can offer, second, by virtue of the flexibility that we can provide and third, because of the opportunities available within the Wesfarmers group to transition from the law into meaningful commercial roles. The Australian legal services market is also undergoing considerable and rapid change through a combination of globalisation, commoditisation and disintermediation and as a result of a comparative lack of domestic growth. I think it is not unreasonable to expect that one consequence of this change will be that increasing numbers of younger lawyers will be attracted to inhouse positions.”
IAG AND ARTHUR J. GALLAGHER & CO In June, Wesfarmers completed the sale of its insurance underwriting operations to Insurance
PAUL MEADOWS’ CAREER HIGHLIGHTS Advising on the proceedings in Victoria, Western Australia and New York, on behalf of the US subordinated bond holders in Bond Brewing Holdings Advising on behalf of the Bank of Melbourne, the proceedings tried in the Victorian Supreme Court arising from the aborted sale of Occidental Life Insurance Company and Regal Life Insurance Company The substantial litigation in the New South Wales Federal Court concerning the sale of John Fairfax Holdings, for Australian Independent Newspapers and the Senate inquiry into the circumstances surrounding the sale of John Fairfax holdings by its receivers Acting on behalf of Rio Tinto, the defence of damages claims arising out of a takeover of Grants Patch Mining, a co-venture in the Kelian gold deposit in Indonesia Advising on the English High Court proceedings between Zeneca plc and Orica Australia Ltd concerning the proper interpretation of an agreement providing for the sale of Orica’s Australian pharmaceuticals business The contested takeover by Rio Tinto of North Ltd and the contested takeover by Rio Tinto of Ashton Mining, including defence of the claims made by De Beers to the Takeover Panel The litigation in the Victorian Supreme Court commenced (following the North takeover) by Nippon Steel Corporation, Sumitomo Metal Industries and Mitsui against Rio Tinto concerning differences in respect of the Robe River Joint Venture and the construction of a railway in the Pilbara
14 | SEPTEMBER 2014
Australia Group (IAG) and its insurance broking and premium funding operations to Arthur J. Gallagher & Co for, in aggregate, approximately $3bn, recording expected pre-tax profits in the order of $1bn. “These transactions were significant for the company and involved over nine months’ intensive work by our M&A team in Perth, led by Sheldon Renkema, in conjunction with our business development team and external advisors,” says Meadows. “Both transactions were complex and involved a number of conditions precedent, including competition law approvals from the ACCC and the New Zealand Commerce Commission.”
STEPPING BACK Now that the excitement has died down, Meadows is preparing for his next challenge: retirement. In June, the 30-year veteran announced he would be stepping down from his role at the end of the calendar year. He plans to pursue non-executive roles and has agreed to provide consultancy services to Wesfarmers until December 2015 in relation to a number of key, ongoing matters. Drawing on his accumulated knowledge, Meadows says he believes the Australian legal space is facing a period of rapid change which won’t likely wane for at least another five-to-10 years. However, while he thinks it may be some time before the current consolidation of the domestic legal services market plays out, he doesn’t see the impacts being quite so dramatic when it comes to in-house counsel. “I do not see the role of general counsel or in-house counsel generally fundamentally changing from the way in which it has developed and evolved over the last 20 years or so in the US, UK and in Australia,” he says. “The core elements will remain, I think, technical competence, the exercise of objective and independent judgment and a capacity to act as a trusted advisor providing guidance not only as to compliance with applicable laws and regulation, governance and risk, but in the fusion of high performance with high integrity and ethics. It will continue to be desirable to attract to in-house roles people with practical wisdom and an understanding of more than just the law, and it will continue to be necessary that the importance of the internal legal function is well understood by senior management and boards.” AL
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Twenty-five years of Legal Expertise
SEPTEMBER 2014 | 15
PROFILE / INTELLECTUAL PROPERTY
IP’s
reinvention
16 | SEPTEMBER 2014
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When you work with innovators, change is an everyday occurrence. But for IP practitioners, this year has been bigger than most. Kathryn Crossley speaks to practitioners about IP’s eventful year In the past 12 months, the Australian Law Reform Commission published its report, Copyright and the Digital Economy; the Advisory Council on Intellectual Property completed a review of the innovation patent system; and IP Australia released the review of pharmaceutical patents. Yet the biggest change for professionals in the IP space has been adapting to the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, which brought in the most significant changes to Australia’s IP laws since the Patents Act 1990. Although the legislation came into force in April 2013, its impact is still being felt.
RAISING THE BAR The most noticeable impact for firms was the increase in filing work as clients sought to have patent applications assessed under the old regime. “There was a lot of manoeuvring prior to that change to bring forward work so that matters wouldn’t need to be dealt with under what are now more stringent requirements,” says Karen Sinclair, principal at Watermark Intellectual Asset Management. “There was a lot of work brought forward because of the Raising the Bar Act … a lot of focus since that time has been adapting to that Act but also adapting to the change in workflow that the Act brought about too,” she explains. This experience was echoed by Griffith Hack principal Tim Mahood, who says that the firm
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PROFILE / INTELLECTUAL PROPERTY
“A lot of our focus since [the Raising the Bar Act] has been adapting to that Act and also to the change in workflow that it brought about”
Karen Sinclair, Watermark Intellectual Asset Management
18 | SEPTEMBER 2014
experienced a 10- to 20-fold increase in the number of applications filed in the month before the new regulations came into force. “There was a glut [of patent filings] that we went through and then a bit of a lull, but it’s picking up again now.” “There was also a massive spike in requests for examination of patents, so if you filed a request for examination before that date, under the transitional provisions it is examined and subject to the old rules,” Mahood says, observing that there is still a backlog of examinations at the patents office. The Act has also altered the opposition process by tightening the timeframes and reducing the time available for evidence gathering. “Whereas in court that timetable is set by the court based on all sorts of factors brought to the table, and is generally a little bit flexible, the timetables that have been set down in the statute and which are being adhered to by IP Australia in its capacity as both the patent office and the trademark office are very, very tight and are proving to be quite inflexible,” Sinclair says. “The major impact on practitioners has been the need
to single-mindedly focus on oppositions where they’ve had them, and for clients it’s probably meant a concentration of costs and concentration of efforts in much shorter time periods than they would normally have had to deal with, and possibly even increased costs in circumstances where clients have had to bear the cost of trying to get extensions of time, and those extensions of time have been hotly disputed.” These changes mean that patent and trademark opposition is less likely to drag on than it was previously, and Mahood reports that clients have been more willing to take issue with patents and trademarks, and there has been a decline in the number of oppositions that settle.
TRENDS IN PATENTS Cost concerns have meant that organisations have taken a more careful approach to patent filings over the past year. “They are more careful and discerning about what they file, and I think the result of that will be stronger patents, because they’re not being speculative about what they’re filing for,” says
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Davies Collison Cave partner Ian Pascarl. Client investment in IP has varied between sectors, with activity in industries such as construction, agriculture, telecommunications, biotech, pharmaceutical and medical devices, although firms were split over whether demand for mining and resources-related patent filings had remained strong or dipped in line with the overall downswing in the sector. Patents for software and computer business systems had been quieter, as had activity in the start-up space. “I think the start-up innovation sector in Australia is very, very challenged at the moment by the financial environment,” says Sinclair. “There’s always start-up businesses around; there’s always new technology being generated, but I think that the willingness of parties to take that to market is probably slowed.” While the Federal Government announced $484.2m in funding for a new Entrepreneurs’ Infrastructure Program in its budget, it is still unclear what the program involves, and whether it will provide any funding to the commerciali sation sector. Sinclair expects that the start-up
THE PATENT BOX SYSTEM IP lawyers in Australia are watching the UK’s patent box system with interest. The system is designed to incentivise organisations to file and generate revenue from patents, by taxing profits earned from patents at a lower rate. Similar systems have also been implemented in Belgium, China, France, Ireland, Luxembourg, the Netherlands, Spain and Switzerland. Earlier this year the Federal Government revealed that it was considering introducing the patent box system, and the combination of the scheme with Australia’s current tax incentives for research and development would be expected to make Australia an R&D destination for companies. The approach could also be expected to encourage Australian companies to stay home, rather than moving innovation – and the resultant employment opportunities – overseas.
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PROFILE / INTELLECTUAL PROPERTY
“They are more careful and discerning about what they file, and I think the result of that will be stronger patents”
Ian Pascarl, Davies Collison Cave 20 | SEPTEMBER 2014
space will remain relatively flat over the coming year, while mid-sized businesses continue to be more active. While the Raising the Bar Act has also made changes to the standards of examination for patents, these new provisions are not expected to have an impact until sometime in the forthcoming year, as cases begin to come through the system. “There’s probably still some degree of uncer tainty about how some of the new provisions of the Act will be interpreted, but then we also have quite a lot of guidance from overseas, not necessarily because exactly the same language has been used but because IP Australia is one of the IP organisations around the world which is most keen on harmonisation, and they certainly are looking to overseas jurisdictions for guidance in terms of how they apply the law to Australian cases,” Sinclair explains. Pascarl predicts that, over time, re-examination will become a weapon companies can use. “At the moment you can ask the patent office to re-examine a patent, and they’ll do so on the basis that it’s not novel or obvious, which really boils down to it’s not novel. But nobody bothered to use it,” he says. “[Now] you can rely upon any ground that could be relied on in opposition proceedings under Section 59 of the Patents Act, so I think that’s going to have an impact.” Greater opposition activity is expected over the coming year as clients take advantage of the more efficient and cost-effective opposition procedures. Changes to the onus in patent opposition are also
expected to encourage increased oppositions. Parties opposing the grant of a patent previously had to establish that it was “practically certain” a patent application was invalid, making the onus very difficult to discharge. According to Pascarl, the new provisions have made clients more inclined to think seriously about oppositions, and his firm has already filed quite a few oppositions under the new system.
DIY TRADEMARKS Trademark filing work has varied between firms over the past year. While filing work has been very active at Davies Collison Cave, Griffith Hack reports that trademark filing work has been mixed. “Trademarks is still relatively busy, although there’s been a shift to people trying to file a lot more of their own,” observes Mahood, adding that this trend is becoming common among a range of clients and appears to be motivated by a desire to do things more cost-effectively. “A lot of the large corporates tend to aggregate their filing strategies out of somewhere either in Europe and the US … they will do a lot of filing themselves, either direct or via the Madrid Protocol,” Mahood says. At the other end of the spectrum, individuals and small companies are also becoming increas ingly aware of trademarks and are filing their own. On some occasions, however, this hasn’t gone to plan, and Mahood has worked with clients who discovered that they had filed something that wasn’t registrable, or who encountered opposition
AUSTRALASIANLAWYER.COM.AU
Recent amendments to
Chinese trade mark legislation
Sparke Helmore IP partner Shannon Platt discusses recent changes to trade mark legislation that are expected to make it easier and cheaper for businesses to enforce their rights in China By Shannon Platt, partner and Joanna Lee, lawyer These days, most organisations that undertake manufacturing work will have links with China. Of course, China is not just a destination for manufacturing; it is also rapidly becoming a consumer market that many brands are keen to participate in. Although China offers incredible opportunities for businesses, companies that do not take steps to adequately protect their brands may fall victim to counterfeiting and trademark squatting. In contrast to Australia, which is a first–touse the mark jurisdiction, China’s trade mark system is first-to-file. In the past, this has created a situation where brandjackers have been able to register marks such as Hermes, Chivas Regal and iPad, and hold out the genuine brand owners from their brands.
APPLICATIONS
But China’s trade mark landscape is changing. Amendments that came into force on 1 May 2014 require trade mark applications to be made in good faith. While China is home to entities that have been set up to prolifically apply for famous marks, now if entities become known as serial infringers, they may be banned from applying in future, and may even face fines. E-filing and multi-class applications have also been opened up and renewals can now be filed 12 months before a trade mark expires. This has made the process more affordable for applicants who previously had to file multiple applications to secure protection across a number of classes. The new legislation has streamlined the process. Applications must now be assessed by the Chinese trade marks office within nine months, and appeals determined within 12 months. The amendments have also introduced sound trademarks.
OPPOSITION AND REMEDIES
The opposition process has also changed under the new amendments. Now, if an opposition is unsuccessful, it cannot be
appealed. This change is controversial because a genuine owner that unsuccessfully opposes a bad faith applicant would be unable to appeal that decision. However, it’s likely to be read in conjunction with the new requirement for all applications to be made in good faith, which is intended to assist genuine brand holders. Once the bad faith applications have been filtered out of the system, it’s unlikely to be an issue in the long term, as the genuine brand owner will be able to use the bad faith provisions to challenge any new application. China offers a number of avenues that are not available in Australia. For example, companies who have well-known brands or trade mark registrations can request the Administration for Industry and Commerce (AIC) to take direct action against the infringer. This approach is particularly useful for dealing with online counterfeiting as the AIC’s Internet network department can have sites selling counterfeit goods taken down. The AIC also conducts raids on factories where counterfeit goods are being manufactured, and they can seize goods, issue fines and cancel business licences. Despite these broad powers, it’s not a total solution for brand owners. The AIC doesn’t award damages or costs. If the brand owner wants to recover damages and costs, those remedies must be pursued by a civil action through the courts. The new amendments have raised the range for damages to US$80,000 to US$500,000, with the possibility of multiplying the damages by up to three times if there is also a bad faith element.
EXCEPTIONS TO INFRINGEMENT
In Australia, where something is deceptively similar, there is a requirement that there is an element of confusion for the infringement claim to be made good. A similar provision has now been included in the Chinese legislation. The amendments have also created an exception to infringement for well-known marks, which is similar to the honest concurrent use provision in Australia. If the owner of the work has used a mark and has a high level of use and
recognition in China before the registered trade mark, that may be a sufficient exemption to infringement. Whether use by an Original Equipment Manufacturer (OEM) of a trade mark not owned by it constitutes infringement has long been debated. In Shenda vs. Jolida, the Shanghai courts held that OEM trade mark use constitutes an exception to infringement. This meant that the genuine overseas owner (who had not registered its trade marks in China) would not be infringing the rights of the brandjacker (who registered those trade mark rights in China), if those goods were manufactured solely for the purpose of export, and would be able to export its OEM goods without fear of Customs seizure. However, the Guangdong courts have taken a contrary view and held that OEM trade mark use is infringing use. The new law may clarify this inconsistency as it now stipulates that use of a trade mark occurs when that trade mark is used on goods, packages, containers or in trading documents, advertising, exhibitions or any other business activities “which identify the source of the goods”. This is because, arguably, OEM use may not be considered by the courts to be “use” by the OEM as the products manufactured by the OEM are not sold by the OEM in China, and therefore do not identify to consumers in China “the source of the goods”. The full impact of these amendments, particularly those around enforcement and damages, may not be known until new cases come through the system. Nevertheless, organisations that are currently doing business in China, or expect to enter China in the next few years, should file a trade mark application as soon as possible to ensure protection. Brand protection in China requires companies to think broadly about how they intend to do business in the future, what brands they will use and how those brands will be used. Logos, plain English word marks and Chinese character word marks should all be registered.
SHANNON PLATT
Shannon is the National Service Line Leader of Sparke Helmore’s Intellectual Property & Technology Team. She has more than 20 years’ experience representing clients in patent, trade mark, copyright and design disputes and also manages an international trade marks portfolio. She can be contacted on +61 2 9373 1465 or shannon.platt@ sparke.com.au
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PROFILE / INTELLECTUAL PROPERTY
IP AROUND THE WORLD
IP LITIGATION TRENDS
Source: World Intellectual Property Indicators 2013, World Intellectual Property Organisation
The top five offices in the world for patent applications State Intellectual Property Office of the People’s Republic of China
27.8%
United States Patent and Trademark Office
23.1%
Japan Patent Office
14.6%
Korean Intellectual Property Office
8%
European Patent Office
6% 0
05
10
15
20
25
30
The top five offices in the world for trademark applications State Intellectual Property Office of the People’s Republic of China
25.1%
United States Patent and Trademark Office
6.5%
Office for Harmonization in the Internal Market (EU)
4.8%
France
4.2%
Turkey
3.5% 0
05
10
15
20
25
30
to their application from a larger organisation. He says this do-it-yourself trend is less pronounced among mid-market-level companies, and adds that much of the initial filing work his firm does currently is for these organisations that have the funds but lack the in-house capability. While the growing popularity of this DIY approach can be partly attributed to an increasing trend back in-house, it isn’t all bad news for IP practitioners. According to Sinclair, the growth of in-house teams typically means better quality of instructions and higher-level and more strategic work, but he says the challenge for private practitioners can be to work out how they fit into that regime. In contrast, Pascarl has not observed this trend in-house for IP work: “It’s a very specialist area as well as technical; in-house counsel can see the pitfalls.” 22 | SEPTEMBER 2014
With more copyright and trademark disputes being resolved through negotiation, patent matters have been the dominant area of Australian IP litigation in the past year. In particular, pharmaceutical litigation has remained busy, and accounts for a reasonable proportion of all patent litigation, although Pascarl says there seems to be less aggression in these cases than previously: “Most pharmaceutical patent litigation is between originating companies and generics, and I see the generics are somewhat more cautious than they were in the past, which probably means they’re doing very careful cost–benefit analysis, both as to the length of time the patent has to run and the strength of their case and the value of the market to them.” Pascarl also observes that there has been a move away from speculative litigation. “The commercial people are demanding very comprehensive business cases before undertaking transactional work or litigation,” he says. “They want to be absolutely assured that this is something where there’s a significant benefit for them, or the elimination of a significant risk.” A number of appeals in pharmaceutical patent matters were heard in the Full Federal Court last year, although only one decision has been handed down to date. Pascarl predicts that, once these judgments are handed down, several applications for special leave will be made to the High Court. While pharmaceutical patent litigation has been active, Pascarl believes that biopharmaceuticals will bring on a new wave of litigation in the coming year. A recent development in IP litigation is the increased use of concurrent expert evidence – colloquially known as ‘hot tubbing’ – which aims to get expert witnesses to come to an agreed position. “It’s really only been gaining prevalence in the last couple of years, but pretty much every case will have some degree of concurrent evidence [now],” Mahood observes. As a result of this, litigators need to carefully consider their choice of expert, and the decision is no longer limited to the consideration of an expert’s CV. “Now you have to think more broadly around what they’re like, how are they likely to give evidence; are they likely to be pushed around by another expert who’s slightly more gregarious?” According to Mahood, the process has worked very well in some cases, but its effectiveness is
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largely dependent on how well it is managed by the presiding judge. Due to its strong IP system, enforcement system and judiciary, Australia continues to be a destination for multinational IP litigation, although more IP litigation work has flowed to Sydney over Melbourne during the previous year. “New South Wales has a lot of good judges and an IP docket system, so they’ve effectively got an IP bench, whereas Victoria abolished that… and now they’re re-implementing it,” Mahood observes. The Federal Court is also due to introduce some new practice notes, which is expected to streamline the IP litigation process and help make it a more attractive option for clients.
THINKING STRATEGICALLY ABOUT IP In the more subdued economic conditions, lawyers say clients have been thinking more strategically about their IP portfolios and determining which assets are of most use and how they can best be leveraged. “There’s certainly
more interest in how to get a return on investment and how to extract value from an existing portfolio as opposed to just building one,” says Sinclair. Mahood agrees. “Some companies are making pretty hard decisions, scaling back IP portfolios, actively choosing not to renew or effectively abandon assets,” he says. Although some clients have sought legal advice in relation to the valuation and sale of IP assets, the main impact of this trend has been the change in clients’ approach to enforcement. Unless it relates to a core business area, clients’ first reaction is typically not to try to stop the infringement at all costs. Instead, Mahood says clients have been attempting to reach licensing agreements with infringers as an alternative to seeking to strictly enforce their rights. “What we’re seeing is people using enforcement strategies as a tool to generate positive revenue for their company ... people are much more aware of the value IP can add to their organisations.” AL
“Companies are making pretty hard decisions, scaling back IP portfolios, actively choosing not to renew or effectively abandon assets”
Tim Mahood, Griffith Hack
iP is about ideas protected We believe that great ideas shape our world when they are harnessed, protected and nurtured in the right way. At AJ Park, we’ve been helping inventors, entrepreneurs, and global companies, protect and enforce their intellectual property rights for over 120 years. From aeronautics and cellular biology, to engine design and thermodynamics, our expertise is as diverse as our client base. With offices in Sydney, Auckland and Wellington, we have one of the largest and most experienced teams of intellectual property experts in the region. Contact us today for specialist IP advice and services. www.ajpark.com | Australia + New Zealand
AJ Park is about iP • intellectual property • igniting passion • ideas pervading • innovation protected • integrated processes • intelligent people • increasing potential
SEPTEMBER 2014 | 23
COVER FEATURE / RISING STARS
Australasian Lawyer profiles 50 early-career lawyers who are already making a name for themselves in the Australian legal market The lawyers in this list are all aged 30 or under, but they are already taking the lead in significant cases and major transactions across a range of practice areas. Within their firms they are participating in practice development and spearheading other initiatives such as mentoring programs for new practitioners. Outside of the office, these lawyers are contributing to the wider community through participation in legal associations, legal education and pro bono work. Each generation of lawyers leaves its mark on the profession, and no doubt many of these faces will be leading law firms through the changes and challenges facing the profession over the coming years.
Insurance Saran Bavich, Gadens Admitted: 2013
Bavich’s impressive client list includes national financial institutions and ASX-listed entities, and her work frequently stretches across multiple jurisdictions. She is also playing a key role in the development of a new service offering to the Perth market. She has worked directly with a partner in the Sydney office to grow the insurance service line, which has contributed to the strategic growth of the firm. Her exemplary work as the sole provider of insurance advice in the firm’s Perth office led to a secondment with Suncorp in NSW.
24 | SEPTEMBER 2014
Danielle Skinner, Wotton + Kearney Admitted: 2008
Skinner is a newly minted senior associate whose practice focuses on personal injury and construction matters. She has also developed experience in public and products liability and has been involved in a number of coronial inquests. She has defended claims against major public sector clients, including Sydney Water Corporation, Roads and Maritime Services and the Department of Education and Communities, and pursued recovery actions on behalf of the NSW Police. Her extensive experience includes acting in catastrophic injury claims and high-value construction disputes.
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Damian Clancy, Colin Biggers & Paisley Admitted: 2008
The largest Australian insurance claim made against London insurers in almost 20 years is among the many notable matters on Damian’s CV. He also played a key role on the team that worked on the most recent Westpoint litigation against its former lawyers, in which the insured was completely successful in its defence of that proceeding. In addition, Damian was part of the team that defended the chairman of the Great Southern Group in a significant class action brought by investors.
Lauren Fieldus, Wotton + Kearney Admitted: 2011
Fieldus’s rapidly developing expertise in financial claims has already caught the attention of senior practitioners. She has acted in a number of complex class actions, D&O and other professional indemnity claims, including representing a director in the Federal Court class action against Octaviar Administration, and representing insurers in respect of the recent failure of a national retail organisation. Before joining W+K in 2012, Fieldus worked as Tipstaff to the Honourable Justice Marks, with whom she co-authored a book on the new work, health and safety legislation. She has also represented two asylum seekers pro bono in their judicial review appeals in the Federal Circuit Court.
Luke Russell, Sparke Helmore Admitted: 2012
Russell is an up-and-coming insurance lawyer who specialises in general commercial insurance, focusing on liability claims. Working closely with a senior practitioner, he has already tackled a wide range of litigation matters, ranging from large-scale property damage disputes to intentional tort claims, labour hire cases and construction cases. His recent work includes assisting a prominent church in its preparation and appearance before the Royal Commission into Institutional Responses to Child Sexual Abuse.
David Carolan, Hall & Wilcox Admitted: 2012
In just two years Carolan has demonstrated his ability in indemnity disputes and fraud claims; public and product liability; property damage (both recoveries and defended claims); and accident towing disputes. He works tirelessly for his clients, which include Insurance Australia Group, CGU Insurance, QBE Insurance, and Allianz Australia Insurance Ltd. Although still in the early years of his career, Carolan has already had a diverse range of experiences in the law. Prior to commencing practice in Victoria, he undertook internships with the United Nations Assistance to the Khmer Rouge Trials and the International Criminal Tribunal for the former Yugoslavia.
Katie Shanks, Wotton + Kearney Admitted: 2010
A growing talent in property and industrial special risks insurance, Shanks was a core solicitor on the W+K team established to advise insurer clients across their portfolio of commercial and institutional losses following the 2010 and 2011 earthquakes in Christchurch, New Zealand. She contributed to the successful resolution of a large number of claims, which required careful technical and strategic analysis on behalf of the firm’s insurer clients. In July 2014, Katie was promoted to senior associate in recognition of her expertise and remarkable contribution to the firm’s earthquakes team.
Michael Rumore, Colin Biggers & Paisley Admitted: 2010
Rumore rapidly ascended to senior associate in the professional indemnity, coverage and policy drafting segments of CBP’s insurance practice. He has also played an integral role in building CBP’s presence in the public/general liability sphere. Prior to settling in insurance, he worked in construction law and property law. Rumore is a keen contributor to life at his firm. Along with a colleague, he set up the Young Professionals Group to help represent the interests of the younger lawyers at the firm.
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COVER FEATURE / RISING STARS
Banking and finance Rebecca Wood, K&L Gates Admitted: 2013
Wood is one of K&L Gates’ rising stars, with a workload focusing on restructuring and insolvency matters. She has assisted the firm’s major banking clients in obtaining possession of properties, in litigation of secured and unsecured debts, and enforcement and priority issues regarding the Personal Property Securities Act. Wood’s key achievements include assisting a banking client in obtaining possession of a large rural property in difficult circumstances where unusual issues arose with the property and a range of allegations were made against the bank. As part of the team acting for the bank, she obtained possession for her client and continues to masterfully deal with allegations against her client.
Abigail Farrelly, Ashurst Admitted: 2011
A senior foreign associate in Ashurst’s banking and finance team, Farrelly has impressed through her work on a number of large-scale corporate, real estate and project finance transactions. Recent highlights include advising AquaSure consortium on its $3.7bn refinancing of the Victorian Desalination Project, and advising lenders on the $250m Essendon Airport refinancing. She has also advised on numerous residential and retail property financing matters. Prior to joining Ashurst, Farrelly spent three and a half years at Allen & Overy LLP in London.
Robert Murphy, Norton Rose Fulbright Admitted: 2007
Catherine Zahra, Gilbert + Tobin Admitted: 2009
Zahra combines strong technical capabilities with a clear understanding of clients’ commercial needs and goals. An impressive young lawyer in Gilbert + Tobin’s banking and finance practice, she has worked on a number of high-profile infrastructure projects, including advising the financiers in relation to the Queensland Schools, Sydney Convention Centre and Eastern Goldfields Regional Prison PPP projects, and the consortium on the NSW Northern Beaches Hospital concession bid. In addition to her considerable PPP experience, she also advised the financiers in relation to the Sydney Desalination Plant privatisation and Healthscope on its project financing and project negotiations for the Gold Coast Private Hospital.
Since moving to Norton Rose Fulbright from King & Wood Mallesons, Murphy has worked on a range of complex debt transactions for an impressive array of major clients, including ANZ, Standard Chartered Bank, Macquarie Bank and NAB. His abilities have come to the fore on a range of complex matters, such as a US$200m syndicated facility that was used by an SPV company owned by ANZ to fund an iron ore prepayment facility provided to Fortescue Metals Group. He took a lead role on this matter and was responsible for drafting and negotiating the innovative facility agreement, which was the first of its kind provided by ANZ. Subsequently, Murphy was also involved in the upscale of the facility.
Tim Ma, King & Wood Mallesons Admitted: 2009
Ma was promoted to senior associate in July 2014 and has already had a stellar year as the running lawyer on the EastLink Tollway PPP, acting for ConnectEast, the concessionaire of the project, on the establishment of its domestic MTN program and ConnectEast’s $250m capital markets issuance. He also advised on its $1.05bn bank debt facilities. This year Ma has also advised the financiers to Axiom Education, the concessionaire of the VicSchools PPP, on the refinancing as part of AMP Capital’s acquisition. Outside the office, Ma is tournament director of the ‘Bolton v Stone’ Melbourne inter-law-firm cricket competition.
26 | SEPTEMBER 2014
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Abi Uthayachandran, Gadens
Peter Chandler, Hall & Wilcox
Admitted: 2010
Uthayachandran’s leadership and technical skills have allowed him to excel on a number of significant and complex cross-border transactions, including InterOil’s successful US$525.6m sale of the group companies that held its Papua New Guinean oil refinery and petroleum products distribution businesses to Singapore-based Puma Energy Group. In addition to major deals, he has made important contributions to legal learning activities within the firm, including setting up a CLE committee within the banking team specifically to facilitate training the team on larger transactions.
Pro bono Mary Konstantopoulos, Clayton Utz Admitted: 2013
Konstantopoulos is fast becoming known for her outstanding community contributions, as well as her legal prowess on the Clayton Utz banking and financial services team. She is involved in the firm’s Community Connect Committee, coordinating the Daystar Literacy Buddies program, and plays a key part in organising the annual Frocktober event to help fundraise and raise awareness for ovarian cancer. This year, she has performed over 80 hours of pro bono legal work, with her clients receiving over $30,000 in victim’s compensation. Konstantopoulos is also an active breast cancer fundraiser, runs the ‘Ladies who League’ (a blog championing women’s involvement in the NRL), and regularly appears on ABC Grandstand’s HensFC.
Admitted: 2012
Chandler is a bilingual transactional lawyer with wide-ranging experience in advising prominent Chinese state-owned enterprises, domestic and international financial institutions, real estate investment funds, and publicly listed and private enterprises. He is an up-and-comer in the world of banking and finance transactions, including syndicated facilities and related security issues, structured and asset-based finance, and project finance. Before joining Hall & Wilcox, Chandler was an associate in the energy and resources practice of the Australian affiliate of Chadbourne & Parke, where he was involved in advising four of China’s largest steel mills on their $11bn Wheelarra joint venture with BHP Billiton and others.
Stephanie Puris, King & Wood Mallesons Admitted: 2010
Puris has an exceptional record of participating in and leading community programs. She completed a six-month secondment with the National Children’s and Youth Law Centre in 2011, which opened her eyes to the disadvantages faced by children across Australia. Upon her return to the firm, she became KWM’s national coordinator of the NCYLC/KWM Cyber Project. Her coordination of the Cyber Project has enabled over 120 lawyers from KWM, and the firm’s clients Telstra and ASIC, to provide pro bono legal advice directly to young people. She is also a member of the Steering Committee of the Australian Child Rights Taskforce, and was invited to consult with the Attorney-General’s Department regarding the terms of reference for the Royal Commission into Child Sexual Abuse.
Laura D’Alessandri, Curwoods Lawyers Admitted: 2009
D’Alessandri’s exceptional understanding of the market and her ability to develop close working relationships allow her to achieve the best results for her clients. In addition to being a talented CTP lawyer, she is also passionate about community activities. She’s an active member of Curwoods’ CSR Committee, recently travelled to Nepal to facilitate a medical camp, and has previously volunteered at a refuge in Thailand. As a Rotarian, D’Alessandri was recognised as a Paul Harris Fellow for her contribution by engaging younger people in community service. SEPTEMBER 2014 | 27
COVER FEATURE / RISING STARS
Intellectual property Danielle Benecke, Baker & McKenzie Admitted: 2010
An associate on Baker & McKenzie Sydney’s IP litigation team, Benecke works with a who’s who of global luxury, entertainment and technology clients. In just over three years of practice, she has developed a specialisation in brand protection and her work has been recognised as having a level of sophistication beyond her years. A senior VP at Estee Lauder in New York recently described her as “nothing short of spectacular”, praising her for her role in a complex and fast-moving counterfeiting case in the Federal Court. After winning a worldwide firm scholarship, Benecke will head to the US in August to undertake Stanford University’s prestigious specialist IP LLM program.
Jacqueline Pitt, K&L Gates Admitted: 2010
Pitt is by all accounts an outstanding young IP litigation lawyer. Her burgeoning practice focuses on often highly complex patent, copyright and trademark disputes, and she recently provided crucial assistance in the successful defence of a client’s use of the colour yellow in a passing off and misleading and deceptive conduct action in the Federal Court. Not content with simply practising, in 2013 she became the founding president of BottledSnail Productions, a non-profit production company for the legal industry. As president, Pitt has managed creative productions seen by over 4,500 people, involving 150 lawyers and raising $20,000 to assist the Tristan Jepson Memorial Foundation’s efforts to combat anxiety and depression in the legal profession.
Agribusiness Adele O’Driscoll, Holding Redlich Admitted: 2013
A third-generation lawyer from central Queensland, O’Driscoll acts for rural enterprises. She has recently been involved in several complex matters, including a $200m deal that crossed several international borders and may serve as a model for large-scale investment by Australian superannuation funds and investors in the future. This significant matter involved the sale and leaseback by Olam Almonds Australia Pty Ltd (a wholly owned subsidiary of Singaporean company Olam International Ltd) of its Australian Almond Orchards by the Adveq Almond Trust II (a group of international investors from America and Denmark).
Energy and resources Cassandra Wee, Ashurst Admitted: 2010
In the busy world of energy and resources, firms need lawyers like Cassandra Wee. A senior associate in the energy and resources group, she has gained considerable expertise in the oil and gas, electricity and mining industries and has acted for a number of the firm’s key clients on matters ranging from LNG marketing, oil and gas/LNG project structuring and joint venture arrangements, to significant upstream and downstream energy offtake and purchase arrangements and the sale and purchase of significant assets in the mining, electricity and oil and gas sectors. Her work includes coordinating due diligence, drafting and negotiating transaction documents and preparing complex advice. 28 | SEPTEMBER 2014
Bailee Walker, Baker & McKenzie Admitted: 2011
Walker is a vital member of the transaction team representing the NSW Government on the privatisation of its electricity generators. Her stellar work has included advising on material hedging, electricity supply arrangements and energy regulatory issues, and assisting the government on AGL’s groundbreaking application to the Australian Competition Tribunal for merger authorisation. She has also played a key role in the sale of Australia’s largest generator, Macquarie Generation, to AGL. Walker’s expertise has also taken her overseas: she has travelled to Malaysia to present to clients and representatives of Baker & McKenzie’s Asian offices on Australian energy markets.
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Real estate and property Kendra McKay, Holding Redlich Admitted: 2009
As the NSW property market goes from strength to strength, senior associate McKay is busier than ever. She is involved in a range of major real estate projects, and her clients finance, own, develop and manage major mixed-use office, retail, industrial, residential and seniors living assets across NSW. She advises various ASX-listed REITs and unlisted property trusts as well as international property developers. Recently, McKay has acted for a stapled A-REIT on in excess of $150m in acquisitions and the ultimate redevelopment of over 15 seniors housing estates in NSW.
Kate Barry, Mills Oakley Admitted: 2011
After only one year of practice, Barry was promoted to the role of associate, and is definitely a young lawyer to watch. Her thorough drafting skills and ability to anticipate client needs has seen many of the firm’s ASX-listed clients recommend her to their peers. As a result of her exceptional work and client service, Barry is taking on increasingly significant and complex work. Her recent work has included advising Lend Lease on day-to-day matters for a 140-lot ‘off the plan’ strata office development in Docklands. She has also advised Lend Lease on the drafting of GST clauses and rent guarantees. In addition, she has project managed a number of client technology projects, and has been responsible for building 10 client portals, including a property and leasing portal for Associated British Foods.
Rebecca Petrie, King & Wood Mallesons Admitted: 2012
Despite having less than three years’ experience, Petrie has in effect been acting in the role of senior associate with limited supervision for the past 12 months on a large private arbitration for John Holland Pty Ltd. Most recently, she stepped up to the challenge during a six-week hearing and effectively acted as instructing solicitor and junior counsel to Sandy Thompson QC. Because of her outstanding technical ability and initiative, Petrie was entrusted with the preparation of many of the key documents presented to the arbitrator during the course of the hearing. Her hard work and dedication was well rewarded when the arbitrator made a point of praising these documents after the hearing concluded.
Melinda Wong, Gadens Admitted: 2011
Wong has thrown herself into the task of helping Gadens meet its strategic objective of developing its presence in Asia. Drawing on her knowledge of Chinese culture and China’s business community, Wong has established key connections between the firm’s property team and its fast-expanding client base of Chinese real estate developers and investors. This has included consolidating the firm’s relationship with YIHE Group, a Chinese hotel group. She is also heavily involved in Gadens’ pro bono program, providing assistance to the Women’s Legal Service and advising a local not-for-profit disaster relief agency.
Anne Montesano, Hall & Wilcox Admitted: 2013
Montesano has taken on a central role in managing and developing the Hall & Wilcox ‘off-the-plan development’ practice. Over the past 12 months, her varied role has included assisting in the acquisition of development sites; managing various development projects; and meeting and liaising with developer clients, site vendors, lot purchasers, owners corporation managers, surveyors, project managers, financial institutions and other significant players in the lifecycle of a development – all tasks she has excelled at. She also prepares and lodges documents to facilitate the registration of plans of subdivision and the creation of owners corporations, as well as preparing all settlement documents, arranging mortgage discharges and facilitating and attending settlements.
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COVER FEATURE / RISING STARS
Litigation and dispute resolution Grazia Altieri, Colin Biggers & Paisley
Kirk Simmons, DLA Piper Admitted: 2009
Simmons has grown into an outstanding young lawyer since his early days as a summer clerk at DLA Piper in 2007–8. Taking a break in 2009 to work as a tipstaff to the Honourable Justice Rothman in the Supreme Court of NSW, in early 2010 he commenced as a graduate at the firm. Now a senior associate, Simmons works in the litigation and regulatory practice, mainly in commercial litigation, focusing on cross-border disputes. In addition to his practice, he is also a law tutor at the University of Technology, Sydney, and regularly writes articles for industry publications.
Admitted: 2010
Acting for high-profile clients such as Pfizer and Boral, Altieri is excelling as a senior associate in the dispute resolution team. She has worked on a number of lengthy debt recovery proceedings and has also been involved in the successful defence of difficult and complex claims. She assisted in settling a large professional negligence claim brought by a mortgage broker against two valuation companies and their directors. Altieri has also worked to contribute to her firm and established both the Young Professionals Committee and Buddy System at CBP Lawyers to help younger solicitors.
Melissa Lirosi, Holding Redlich Admitted: 2009
Lirosi’s first contested Supreme Court trial was a big one: two of the best silks in the business going head-to-head in a hard-fought contract battle between two sophisticated corporates – a case lawyers dream about. Her intimate knowledge of the matter saw Lirosi play an integral part in the running of the litigation, including instructing counsel over four days of crossexaminations and intense legal analysis by some of the most brilliant legal minds in the country. Outside of the office, her food blog, ‘My Fair Melbourne’, has garnered an impressive following and led to an after-work life of restaurant openings and interviewing internationally acclaimed chefs. 30 | SEPTEMBER 2014
Nick Swan, Sparke Helmore Admitted: 2010
Swan specialises in administrative law advice and commercial litigation for a range of Commonwealth departments and agencies. He has developed his legal skills in his role of managing a busy litigation and advisory practice, through a Master of Law at Cambridge University, and in his ongoing role as tutor and examiner at the ANU College of Law. Swan has instructed senior counsel in Full Federal Court appeals and has been a solicitor on the record in special leave applications to the High Court. He also manages several immigration litigation files and appears as an advocate in the Administrative Appeals Tribunal, Federal Circuit Court and Federal Court.
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Melissa Tan, Curwoods Lawyers Admitted: 2012
By day, Tan works on Curwoods Lawyers’ dispute resolution team and thrives on client trust and rapport. She recently gained her status as an associate of the Chartered Institute of Arbitrators, which reflects a professional commitment to the promotion of private dispute resolution and providing clients with a proactive approach and a different perspective to achieve the most efficient and sensible outcome. Outside her day-to-day commitments, Tan is passionate about fighting human trafficking in Asia. She has raised funds for Project Futures through a charity run, and continually supports the Blue Dragon Children’s Foundation, an Australian charity working in Vietnam with children in crisis.
Erin Hourigan, Maddocks Admitted: 2008
A senior associate who acts for government and corporate clients in commercial disputes, regulatory and advisory matters, Hourigan has developed a reputation for her skilful handling of complex contractual issues, Corporations Act matters, ASIC/ACCC investigations, the Competition and Consumer Act, defamation and reputation management and negligence. Career highlights include acting for NSW Department of Family and Community Services in relation to its involvement in the Royal Commission into Institutional Responses into Child Sexual Abuse. Hourigan also successfully acted for the CBA in its defence of a significant, long-running exemployee’s defamation/sexual harassment claim.
Claire Schneider, Norton Rose Fulbright
Admitted: 2008
Schneider is a gifted litigator who has acted in a range of significant commercial disputes, including helping Rio Tinto defend a $25m claim by Walker Corporation in relation to a proposed lease. The NSW Supreme Court case involved over 35 volumes of documentary evidence and a spread of witnesses across Australia and the UK. Schneider used technological platforms to successfully facilitate access to evidential material, and supervised an international team of 12 lawyers from a legal process outsourcing firm analysing over 54,000 documents. She is also the lead senior associate acting pro bono for the Seisia Community Torres Strait Islander Corporation in a Supreme Court of Queensland claim.
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SEPTEMBER 2014 | 31
COVER FEATURE / RISING STARS
M&A
Alex Kauye, Gilbert + Tobin Admitted: 2009
Crystal Png, Norton Rose Fulbright
Admitted: 2008
Png’s strong business development skills and her outstanding contributions to the firm resulted in her promotion to senior associate in 2013. She has advised on a number of prominent local and cross-border transactions, including acting for corporates such as GHD, and acting for private equity funds such as CHAMP Ventures on the sale of TSMarine (a global subsea specialist oil and gas service provider) and on the acquisition of Road Safety Equipment Australia. She also regularly acts for global insurers with respect to proposed warranty and indemnity insurance policies taken out for M&A transactions with deal values ranging from $20m to $500m.
Janelle Watts, Sparke Helmore Admitted: 2011
Watts’ rapid professional development has seen her take on an integral role in the corporate group’s key transactions and initiatives in the last 12 months. She has acted on many complex M&A and private equity transactions, including the investment by Inflexion Private Equity into CMO Global (which involved elements in Australia, the UK, the Netherlands, Singapore, the USA and New Zealand), several transactions for Anacacia private equity and Macquarie Capital, and a large restructure of the business of Only About Children. She has also helped build the firm’s warranty and indemnity transaction insurance practice, having acted on over 10 transactions for underwriters in the last six months.
As a senior lawyer in Gilbert + Tobin’s corporate advisory team, Kauye has played a key role in some of the most high-profile and complex transactions in Australia over the last few years. These high-profile deals include Foxtel’s acquisition of Austar, Rio Tinto’s takeover of Riversdale Mining, PEP’s acquisition of Spotless, Archer Daniels Midland Company’s proposed takeover of GrainCorp, the recapitalisation of Billabong by Centerbridge and Oaktree, Vitol’s proposed acquisition of Shell’s Australian downstream assets, the IPO of Burson Group, and the privatisations by the NSW Government of the Ports of Botany, Kembla and Newcastle.
Private client services Julia Tonkin, Maddocks Admitted: 2012
Tonkin specialises in advising high net worth individuals on all aspects of personal succession planning, and is responsible for the day-to-day management of Maddocks’ robust probate practice. Her clients include some of Australia’s leading families and young entrepreneurs. She is already developing a strong practice in the Guardianship & Administration list at the Victorian Civil and Administrative Tribunal (VCAT), including both advice and appearance work. Her considerable expertise has also been recognised outside of the firm. Last year, Tonkin was invited to present to legal professionals at a continuing professional development seminar, and delivered the paper Testamentary Trusts: A Sense of Entitlement.
32 | SEPTEMBER 2014
Tim Scanlan, HopgoodGanim Admitted: 2008
Scanlan was promoted to senior associate at just 26 years of age, and it’s easy to see why. He specialises in business structuring and the acquisition and disposal of private enterprises, and his clients include some of Queensland’s most well-regarded entrepreneurial companies. His diverse practice spans a variety of industries such as financial services, hospitality, healthcare and mining services. In the last 18 months Scanlan has been involved in mergers and acquisitions with a total value in excess of $200m. In particular, he advised South Coast Radiology in relation to a merger to create Australia’s largest physician-owned radiology network.
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Environment Gemma Chadwick, HopgoodGanim Admitted: 2008
In recognition of her exceptional record in planning, development and environmental law issues, including representing clients in the Planning and Environment Court, Chadwick was promoted to senior associate in 2013. Her recent work includes advising Boral in relation to its existing operation at Upper Ormeau, as well as its proposed development of a hard rock quarry at Reedy Creek. She has also successfully negotiated a development approval for Leighton Properties’ Mosaic project in the course of a Planning and Environment Court Appeal, following an initial refusal by Brisbane City Council. In addition, she has advised Consolidated Properties on its 550 Queen Street office tower project.
Employment Kaitlyn Gulle, Lander & Rogers
Admitted: 2010
Advising on the drafting and implementation of workplace policies and enterprise agreements, and assisting with the progress of grievance procedures and internal investigations is all in a day’s work for Gulle. Her impressive list of achievements includes acting in a landmark decision of a full bench of the Fair Work Commission (FWC) which established the temporal scope of the new anti-bullying jurisdiction. She also acted for Mammoet in the complex High Court appeal brought by CFMEU regarding prohibition on making payments to employees during protected industrial action. Her extensive practice also includes employment, industrial relations and anti-discrimination litigation in the Federal Courts, the FWC and VCAT.
Arjuna Dibley, Baker & McKenzie Admitted: 2012
Dibley is an impressive associate in Baker & McKenzie’s global environmental markets practice, where he practises on climate change law and policy in Asia. He has advised the Indonesian Government regarding laws related to REDD+, and a large multinational company on projects in China established under the Clean Development Mechanism, among other significant matters. Dibley has written and presented on Indonesian and international environmental law, including at the Forest Asia Summit. In recognition of these experiences, he was appointed an associate at the Melbourne Law School in 2013, and in the same year received the Australian Davos Connection Australian Leadership Award.
Joel Davis, DLA Piper Admitted: 2010
Davis launched his legal career as an associate at the Fair Work Commission – superb preparation for joining DLA Piper’s employment group in January 2011. In addition to his employment advisory and litigation expertise, Davis takes a leading role in a number of business and internal cultural development activities at the firm. He pioneered the firm’s peer-to-peer networking initiative called Zone, which has since been replicated in most of DLA Piper’s major offices around the world. Joel’s star is clearly on the rise. He was promoted to senior associate in early 2014, and later this year he will transfer to the firm’s London office to continue training in preparation for partnership.
Financial services Sarah Buggy, Mills Oakley Admitted: 2011
Selected from hundreds of applicants, Buggy joined Mills Oakley as the first graduate at the firm’s Sydney office. She joined Lisa-Marie McKechnie as the only solicitor on the financial services team, and has helped grow this practice area to almost 20 solicitors across three offices. One of her first cases was recently heard before Justice Pembroke in the Supreme Court of NSW. She was responsible for preparing the case, and during the hearing she instructed counsel, advised the client, and engaged in settlement discussions. The client was successful and awarded judgment with costs. Her outstanding client service was recognised last year with a firm-wide award. Buggy was promoted to associate in June this year and is currently the youngest associate at the firm.
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COVER FEATURE / RISING STARS
Competition
Lena Vanmali, Gilbert + Tobin Admitted: 2011
Matthew Battersby, Clayton Utz
Admitted: 2010
Battersby is a rising star who advises on competition, telecommunications and consumer law, with a focus on the TMT sector. Working with some of the largest device manufacturers and network operators in Australia, Battersby helps his clients navigate regulatory challenges and formulate novel legal solutions so they can continue to develop innovative and productivity-enhancing devices and services in what is a dynamic and rapidly evolving sector. Pro bono forms an important part of Battersby’s practice and he provides advice to charities and victims of crime in addition to his volunteer work at a community legal centre. He was promoted to senior associate in July 2014.
Elizabeth Sarofim, Ashurst Admitted: 2011
Sarofim advises clients on competition law issues in a wide range of industries and has been instrumental in a number of high-profile transactions, including obtaining informal merger clearance from the ACCC for Google’s acquisition of Motorola Mobility. She has also secured clearance from the ACCC for AGL to acquire the balance of Loy Yang Power. This clearance concluded a landmark regulatory process that had its origins more than a decade ago. In recognition of her achievements, she was appointed as a senior associate in May 2014. Prior to joining Ashurst, Sarofim was a senior project officer at the ACCC.
A lawyer in Gilbert + Tobin’s competition and regulation practice, Vanmali has a proven and recognised track record of delivering commercial and innovative client solutions. She has played an instrumental role in game-changing transactions, like obtaining ACCC clearance for Virgin’s acquisition of 60% of Tiger, a deal of key strategic importance for an industry under heavy regulatory scrutiny. Vanmali takes a leading role in mentoring paralegals, clerks, lawyers and law students through initiatives such as the Sydney University Law Society Women’s Mentoring Program, and guest lectures for the competition law course at Sydney University.
Infrastructure and construction Kathryn McCormack, Clayton Utz Admitted: 2009
McCormack is one of the lawyers to watch at Clayton Utz. A senior associate in the major projects and construction group, she has had pivotal roles on some of the largest transport infrastructure projects in Australia, including the North West Rail Link in NSW, and Legacy Way in Queensland. The high calibre of her legal and commercial acumen is being recognised by both the legal industry and academia. This year she was offered a place on the prestigious Master of Law program at New York University. McCormack is one of only a few hundred students accepted to NYU out of thousands of applicants from around the world. 34 | SEPTEMBER 2014
Fiona Borrelli, Allens Admitted: 2011
Borrelli is a major infrastructure projects specialist and has played pivotal roles in a number of important, large-scale social and economic infrastructure projects. In addition to her technical excellence as a senior associate, clients and colleagues comment on her advanced commercial and relationship skills. She has also been recognised for her strong project management and communication skills, culminating in her ability to work autonomously in leading diverse deal teams. Borrelli recently played a key role in advising the successful consortium for the Queensland Schools Project PPP from bid submission to financial close. Completing in December last year, it is the second-fastest Australian PPP to reach financial close.
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MELBOURNE / SPECIAL REPORT
Melbourne makes its move After several quieter years, Melbourne’s legal market has been picking up the pace. Buoyed by increased client activity, firms talked to Australasian Lawyer about their predictions for the year ahead
This year the mood in Melbourne’s legal market is largely positive. Improved client confidence and strengthening market conditions have firms reporting increased activity across most practice areas over the past 12 months. “We’ve seen a notable increase in deals, property transactions, litigation – all those sorts of matters. There’s been a dramatic jump in the amount of work that’s floating around,” says Kliger Partners principal lawyer Anton Block. “That’s not to say that people have gone crazy; there’s still cautiousness. It’s not like it was three or four years ago, but things have turned significantly.” While firms had adopted different strategies to weather the leaner times, with the upturn in the market these strategies continue to pay dividends. Thomson Geer’s Melbourne practice has focused on the specialist skills needed in the 36 | SEPTEMBER 2014
local market, says the firm’s chief executive partner Adrian Tembel. “If you go back three or four years, all of the full-service offices with a lot of generic transactional capability suddenly hit difficult times. I think the market adjusted significantly. Generic transactional – whether that’s litigation or M&A-style work – volumes dropped, and it really came down to who had specialist skills and who didn’t. Those with specialist skills have, I think, continued to operate quite effectively, but the generic guys are struggling,” he says. According to Tembel, the Melbourne-specific areas the firm has invested in include super annuation, telecoms regulatory work, industrial relations, and complex tax expertise. “I think that too often the national firms try and reproduce the big, full-service offering they’ve got in Sydney down here, and that just doesn’t take account of the nuances and the
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specific strengths and weaknesses of Melbourne,” he explains. For Kliger Partners, the firm’s diverse client base helped insulate the firm against the effects of the economic downturn. “The impact of the GFC was softened because we have a broad spectrum of clients. Whilst some of them were quiet, others were busy or busier than normal as they were in the position to take advantage of opportunities created by the GFC,” says Block. With market conditions continuing to improve, Block says the firm’s broad client base has meant an increase in work across all areas. Having a wide variety of practice areas has assisted Lander & Rogers’ Melbourne office, says Jackie Solakovski, head of the firm’s corporate practice. “Our firm has quite diverse practice areas, and that really has been quite a deliberate strategy that enables us to take advantage of
“There’s been a dramatic jump in the amount of work that’s floating around. That’s not to say that people have gone crazy; there’s still cautiousness. It’s not like it was three or four years ago, but things have turned significantly” Anton Block, Kliger Partners trends and changes in the market.” Solakovski adds that being part of a national firm meant the Melbourne office was not solely dependent on local activity, and international referrals for Melbourne legal work had also increased. “We have approached the changing market with agility, exploring alternative fee arrange ments, more innovative approaches to partnering and delivery, and prioritising client listening activities,” says Maddocks chairman Mark Hayes,
SEPTEMBER 2014 | 37
MELBOURNE / SPECIAL REPORT
“I think there’ll be a lot of infrastructure investment in Victoria over the coming 24 months and longer ... that’s a real area of opportunity for firms that are strong in Melbourne to participate in that infrastructure boom that’s coming” Tony Macvean, Hall & Wilcox
adding that these initiatives have contributed to the firm’s growth, and the steady flow of work across the firm. “Simply, there will always be work for those firms that appreciate the importance of being close to their clients.”
REAL ESTATE Several of the firms interviewed by Australasian Lawyer reported increased demand for real estate advice over the past 12 months, and expect that investment in real estate will continue over the coming year. “There’s significant population growth forecast for Melbourne, and that has meant that there’s a reasonable amount of activity in the real estate sector. There’s been some planning changes to facilitate the development of apartment buildings and the like, and quite a bit of Asian investment into this market, so that has also contributed to a pretty active sector,” says Hall & Wilcox managing partner Tony Macvean, adding that some of the improved strength in the funds sector has also been concentrated around property funds, including real estate fund IPOs. Similarly, Kliger Partners has also experienced a busy year in property. While leasing, buying and selling work have all been busy, Block says the firm has experienced a 20-fold increase in owners corporation work over the past year, and he explains that much of the increase can be attributed to the firm’s strategy to grow that practice area. “There is good work out there and you just need to go out sometimes and seek it, and it will come. That was certainly our experience in relation to the owners corporation industry.” Thomson Geer has also opted to focus its real estate work on a particular aspect of the market. “In the real estate market we’ve been very specific around inbound Malaysian and Chinese investment work, and that’s been successful; it’s a very busy practice. We’ve stayed away from just general internal property transactional work – it’s overcrowded,” Tembel says.
INFRASTRUCTURE The projected population growth for Melbourne is also expected to bring firms a healthy year in infrastructure work, and government infrastruc ture projects such as Avalon Airport Rail Link, East West Link and Melbourne Rail link are already in the planning stages. “I think there’ll be a lot of infrastructure invest ment in Victoria over the coming 24 months and 38 | SEPTEMBER 2014
longer,” predicts Macvean. “I think that’s a real area of opportunity for firms that are strong in Melbourne to participate in that infrastructure boom that’s coming.” Solakovski agrees and predicts increased infrastructure activity off the back of the Victorian election later this year. According to Hayes, greater client interest in alternative models is also driving work for firms. “Stakeholders in infrastructure are faced with the ongoing challenge of extracting more from their assets and ensuring expenditure is predictable across the lifespan of infrastructure. Alternative project delivery models are becoming more appealing – JVs, PPPs, etc. – and this approach always results in interesting legal work.” As with any significant project, disputes can arise, and these infrastructure projects are expected to generate work for firms. “Invariably, what also happens is litigation flows from those sorts of development projects, and we hope to get some of that work,” says Block.
SUPERANNUATION With a number of large superannuation funds headquartered in Melbourne, the super industry has continued to keep many local firms busy. “Super funds have significant inflows of capital every year as a result of compulsory superannua tion, and they have to deal with complex and changing regulation,” says Macvean. In addition to regulatory advice, some firms have also experienced an increase in work resulting from consolidation in the super annuation sector. “There’s at least a couple [of superannuation fund mergers] that are slated for later this year; there’s lots of money in the sector and there’s a deliberate push to consolidate, so that leads to lots of activity,” Macvean adds.
M&A Firms’ experiences of M&A work have been varied over the last 12 months. “For us, M&A has been patchy,” says Macvean. “There have been a few good deals, but it’s been a bit up and down over the past 12 months.” Tembel agrees. “Transactional teams have been okay, but they haven’t been the outperform, and in terms of our outlook, and I don’t think that will change,” he says. In contrast, Solakovski reports growth in this area: “We’ve definitely expanded our corporate
AUSTRALASIANLAWYER.COM.AU
practice, and that’s in line with increased M&A activity and other opportunities in the market,” she says. Block also notes an increase in commercial and transactional work.
INTERNATIONAL FIRMS IN MELBOURNE
In its 2014/15 State Budget the Victorian Government announced $27bn in infrastructure spending:
Melbourne Rail Link
$11bn
East West Link (western section) $6–8bn previously invested in 2013/14 Budget
$8-10bn
CranbournePakenham Rail Corridor upgrades Removal of metro level rail crossings
$2.5bn
In addition to $418m previously committed
$685m
Princes Highway West duplication project
$362m
Murray Basin Rail Project
$220m
PROJECTS ALREADY UNDERWAY Regional Rail Link project
$4.1bn
Expansion of the Port of Melbourne
$1.6bn
Port of Hastings development planning
$110m
THE MELBOURNE LAW MASTERS 2014
Join the world’s brightest Comprising more than 30 courses, the program offers exceptional quality and a wide subject choice that allows students to tailor courses to meet their professional and personal aspirations. /melbournelawschool
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SEPTEMBER 2014 | 39
Source: 2014/15 Victorian State Budget
For many of the firms Australasian Lawyer spoke to, the entry of international firms into the Australian legal market has prompted a shift in which firms are undertaking certain types of legal work. “The fact that international law firms are finding their way into Australia is changing how legal work is being done. Work that might have previously been done by the top-tier firms is now often done by mid-tier firms, and the work that was being done by the traditionally mid-tier firms is often pushed down to smaller firms. What it highlights is that there are quality lawyers in law firms across the industry, and clients are savvy at identifying appropriate lawyers to do their work,” explains Block.
INFRASTRUCTURE IN FOCUS
MELBOURNE / SPECIAL REPORT
“Stakeholders in infrastructure are faced with the ongoing challenge of extracting more from their assets and ensuring expenditure is predictable across the lifespan of infrastructure. Alternative project delivery models are becoming more appealing, and this approach always results in interesting legal work” Mark Hayes, Maddocks 40 | SEPTEMBER 2014
“What that does is it creates the opportunity for the mid-tier firms to pick up work that might otherwise have been done by those [larger] firms, which in the past would not have been available to mid-tier firms,” he adds. Macvean agrees. “We’re investing in our insurance practice, and we think that as the larger global firms seem to be reducing their investment in insurance, there’s an opportunity for us,” he says. Many of the Melbourne firms also say the city has been overlooked by the international firms entering the Australian market, and believe this has also assisted them in gaining market share. “I don’t get the sense that there’ll be much more interest in Melbourne from the interna tionals. I think that the focus of the international firms seems to be Sydney and Perth, and they tend to think that they can service Melbourne from Sydney,” says Macvean, observing that many of these firms seem to be almost deliberately contracting in Melbourne. “The overall market is probably flat and steady, but we’re growing, and we think we’ve grown because we’re winning market share from other firms, and to some extent I think that’s because the larger firms are less focused on the Melbourne market than they were. They seem to be more focused on the Sydney market and globally.” With several of the larger local firms now merged with international counterparts, Solakovski says
this creates opportunities for other domestic firms to win international work: “It opens up more opportunities and sets us apart as being a truly independent Australian law firm, and that has definitely been an advantage for us, particularly from the international referral space.” She adds that Lander & Rogers has experienced increased international referrals over the last 12 to 18 months. While the arrival of international firms has brought about some changes in the market, Tembel believes another trend is also fuelling the change in where certain legal work is being done. “The perception of the Melbourne market has always been that it’s a very highly relationshipdriven, tight market, and that’s true to a point. But like all legal markets in the Western world, they’re becoming a lot more sophisticated,” he says. “The old friendship doesn’t get you there any more. The clients are requiring you to not just trade off your friendship with them; they’re needing you to have the value and the skill sets to also get by. I think Sydney being our first international city arrived at that point a long time ago. I think Melbourne has been a bit slower to get to that higher standard, but I think it’s far more open now than it was five years ago to outsiders if they’ve got skills and value to add. I think that this market is becoming far more disciplined and sophisticated in the way it sources its legal needs now than it used to be.” AL
AUSTRALASIANLAWYER.COM.AU
FIRMS’ HIGHLIGHTS FROM THE PAST YEAR Hall & Wilcox
Acting for six general insurers in relation to the 2009 Victorian Black Saturday bushfires, including representing them at Royal Commission hearings and subsequent class actions Advising a private consortium on the acquisition of the Melbourne Storm NRL franchise from former owners News Limited
Kliger Partners
The firm’s building and construction team is acting for the head contractor in the $135m redevelopment of Epworth Hospital Acting for the vendor in the sale of Rivers Australia to Specialty Fashion Group
Lander & Rogers
Leading the Reece acquisition of 100% of the shares in Actrol Parts Holdings Pty Ltd and its subsidiaries for $280m Acting for Centuria Property Funds in its off-market sale of a refurbished Melbourne CBD office building at 50 Queen Street to a European investor. The deal value was $40.7m – a 56% increase on the purchase price four years ago
Maddocks
Advising the construction joint venture comprising Ferrovial Agroman, Samsung C&T and Ghella, bidding for the $5bn East West Link tunnel and road PPP project Advising Watpac Construction on their D&C subcontractor role in designing and constructing an approximately 500-bed student residential accommodation facility at the University of Melbourne. The university procured the project via a public-private partnership, and the facility when constructed is expected to be state of the art, capable of being operated for a period of 38 years
“I think that this market is becoming far more disciplined and sophisticated in the way it sources its legal needs now” Adrian Tembel, Thomson Geer
SEPTEMBER 2014 | 41
PROFILE / JOHN NERURKER
The rise and rise of Mills Oakley In only a decade, Mills Oakley has grown from a singleoffice firm to a national legal brand. CEO John Nerurker talks to Kathryn Crossley about the firm’s transformation 42 | SEPTEMBER 2014
AUSTRALASIANLAWYER.COM.AU
When talking about the rise of Mills Oakley, it’s easy to become fixated on the numbers. Ten years ago, Mills Oakley was a single-state firm with approxi mately 70 staff and $12m in fees. Fast-forward through 10 consecutive years of double-digit growth, and the firm now has more than 350 staff and has generated $77m in fees during the 2013/14 financial year, all of which was achieved without a merger. The firm has also expanded north, opening offices in Sydney in 2006 and Brisbane in 2007. But for the man who has led Mills Oakley’s transformation from a modest Melbourne firm to a national legal brand, the numbers aren’t the only success story. Despite all of the impressive statistics, CEO John Nerurker says he’s proudest of the “tightknit” partnership the firm has assembled. “There’s no doubt in my mind that we are fielding the strongest ever [partnership] in Mills Oakley’s history,” he says. And it’s no surprise why. A significant proportion of the current partnership are alumni of top-tier firms. But how did a previously little-known firm attract so much top-tier talent? “One thing we have done well is learn from some other firms’ mistakes,” Nerurker says. “During the course of our lateralhire strategy, we realised there were a few consistent reasons why senior practitioners were looking to leave their firms.” Realising that the firm risked losing its own lawyers for similar reasons, Nerurker set out to address many of the frustrations experienced by senior lawyers. One of the key problems in his eyes was the lack of clear criteria about how partner appointments were decided. “I meet so many very capable practitioners from competitor firms who have no idea what they’re expected to do because they’re told they have the support of their partners and colleagues but it’s a decision that’s made overseas, or there are people in the queue ahead and they’ve been with the firm longer. I’ve heard all of these positions and they lack merit and transparency,” he says. “We openly articulate a career map for all our staff and they know what they need to achieve to be considered for promotion to the next level.” Mills Oakley also adapted other aspects of its practice. “We threw out the lock-step into our equity ranks; we articulated very clear thresholds; we didn’t move the goalposts on people when they got to achieve them. As a result of that, I believe we have become a haven for high-performing partners who back themselves.” According to Nerurker, the firm is now reaping
the rewards of this strategy. New partners have helped to grow the firm’s capability and, more importantly, brought new clients to the firm. Ten years ago Mills Oakley had no ASX200 clients. Today it has more than 20. “We’ve experienced firsthand many partners voting with their feet, leaving those large partnerships to come to firms such as ours. And good clients follow good people.” Nerurker says the partners share the firm’s vision and its approach to hiring and promotion. “There is a real willingness amongst our partners to invest at Mills Oakley. We are focused on creating a sustainable partnership that will leave a legacy and create opportunities for staff,” Nerurker says. “It’s possible for any firm to emulate what we’ve done. Perhaps the reason most don’t is because the people who need to vote in support of more equity partners are going to be worst affected by those changes. As long as that happens, Mills Oakley will continue to prosper and hire talented practitioners.”
GLOBAL FIRMS CREATING OPPORTUNITIES FOR LOCAL FIRMS An accountant by training, Nerurker has a track record of helping to transform organisations. After working for the management consulting arm of PricewaterhouseCoopers, Nerurker spent five years as the COO at Slater & Gordon, played a role in the firm’s transition from partnership to incorporated legal practice, and helped to grow the practice into a national firm. While Mills Oakley owes much of its recent success to its lateral-hire strategy, Nerurker also attributes the firm’s growth to the arrival of international law firms in Australia and says the internationalisation of the Australian legal market has been a boon for some local firms. “What’s probably catapulted us forward has been the globalisation of the Australian legal profession … we are a firm that’s focused on a domestic client base and we’ve
MILLS OAKLEY, THEN AND NOW 2004
2014
Revenue*
$12m
$76.8m
Partners
16
58
Offices
Melbourne
Melbourne, Sydney and Brisbane
Clients
Predominantly SMEs, high net worth individuals and family-owned businesses
ASX200 companies, financial institutions, government, plus heritage clients *Refers to FY2003/4 and FY2013/14.
SEPTEMBER 2014 | 43
PROFILE / JOHN NERURKER
certainly experienced that several domestic clients feel jaded about large global cost infrastructures. These big firms that have tied up have been very focused on bedding down global mergers. Work that’s coming to us is work that only a few short years ago would have gone to top-tier firms.” Although Mills Oakley has been a beneficiary of this trend of corporates migrating to the midmarket, Nerurker says the challenge going forward is to show clients that the firm’s value proposition isn’t just about cost. While the firm now represents ASX200 companies, financial institutions and government clients, Nerurker says Mills Oakley has retained many of its traditional clients (typically SMEs, high net worth individuals and family-owned businesses).
NEW PARTNERS FROM THE LAST 12 MONTHS Partner
Former firm
Practice area
Office
Ariel Borland
Internal promotion
Commercial disputes
Melbourne
Cheryl Weston
Eakin McCaffrey Cox
Commercial litigation
Sydney
Chris Ketsakidis
Maurice Blackburn
Financial services
Melbourne
Dale Cliff
MS & Cliff Lawyers
Commercial disputes
Brisbane
Dan Mackay
Internal promotion
Financial services
Melbourne
Gavin Douglas
Internal promotion
Corporate advisory
Sydney
Harry Giannakidis
Internal promotion
Private advisory and tax
Melbourne
Jason Leonard
HWL Ebsworth
Financial services
Sydney
John Storey
Internal promotion
Tax
Melbourne
Malcolm Davis
Herbert Geer
Workplace relations, employment and safety
Sydney
Michael Down
DLA Piper
Insurance
Sydney
Peter Meades
Maddocks
Building and construction Sydney
Rohan White
Sparke Helmore
Government and administrative law
Sydney
Ross Levin
Rigby Cooke
Workplace relations
Melbourne
Simon Champion
Piper Alderman
Corporate advisory
Sydney
Susan Warda
Coleman Greig
Family law
Sydney
Tim Cox
Internal promotion
Corporate advisory
Brisbane
Tom Cantwell
DLA Piper
Property
Melbourne
Tony Butler
DLA Piper
Property and commercial Brisbane
Ziv Ben-Arie
Internal promotion
Building and construction Sydney
44 | SEPTEMBER 2014
Last year the firm launched its private advisory team to provide tailored corporate, commercial, taxation, estate planning and asset protection advice to the firm’s smaller clients. According to Nerurker, the initiative aims to build long-term relationships with clients, and the team has enjoyed 30% growth year-on-year. “It’s growing quickly because it tapped into an area of the market where there’s a real need in a larger law firm environment to have a team dedicated to smaller clients,” he says. “Some of those smaller clients often become a lot larger. We wanted to go on that journey with them and we now can.”
MID-TIER NO MORE Perhaps surprisingly for someone who trained as an accountant, Nerurker says the firm does not have financial targets as such. “Sure, our lawyers have fee budgets and we intend to become larger, but how much larger is an open question. For example, we don’t have a particular objective to be 100 partners strong, or to make $200m in fees. Our goal is sustainable growth and so we will keep an open mind about where that takes us.” Nerurker says Canberra would probably be Mills Oakley’s next location as the firm works to build its government client base, but adds: “There’s still a lot more room for us to grow before we have to look at new geographies to expand our market share.” Would a merger be on the cards? As Nerurker points out, firms can grow in three ways: organically or through lateral hires or mergers. “Astute firms would consider all three, and we like to consider ourselves an astute firm,” he says. “A lot of firms seem to merge in the mid-tier space with distressed partnerships. In my view, that’s a little counterintuitive, joining forces with partners who for whatever reason aren’t viable in their own right.” Nerurker says the firm would look for “like-minded partners who share our vision and values”. He adds that the firm’s focus is more on its positioning in the market. “We want to be the leading domestic law firm in Australia and break out from the mid-tier, and we’re working really hard to do that,” he says. In fact, Nerurker doesn’t expect the mid-tier tag to be used in future. “My view is that within a few years you won’t have this terminology – ‘top-tier’, ‘mid-tier’, ‘boutique’; you’ll have ‘internationals’ and ‘nationals’,” he says, “and we are working very hard to position Mills Oakley as a leading national law firm.” AL
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PROFILE / ANU CHENGAPPA
Anu Chengappa:
Law of the jungle Think your job as a lawyer is tough? Try battling corruption, prejudice and the timber mafia to make sure the tigers of India survive
“Time is crucial if a company is chopping down trees in a protected area, so if someone calls in the middle of the night and says they need you in court the next morning, you have to be ready to go�
46 | SEPTEMBER 2014
AUSTRALASIANLAWYER.COM.AU
It was a normal morning in Bangalore – hot, dusty, and crowded. As Anu Chengappa slipped behind the wheel of her car for the drive across town to the High Court of Karnataka, her thoughts were full of the challenges that day’s case would present. How would she get the judge to understand that the needs of the ecosystem were greater than the needs of the transport lobby fighting for a highway right through the middle of a biodiversity hotspot in the nearby Western Ghats? A mile down the road her thoughts were, jarringly, forced towards an even more immediate matter. She was pressing the brake pedal and nothing was happening. She tried again and again, suddenly aware of her speed and the huge array of potential obstacles up ahead. Nothing was happening. “Maybe it was divine inter vention,” she says, “but somehow I managed to shift into first gear and manoeuvre the car to a forced halt without hitting anything or anyone.” Disaster averted, she left the car by the road and continued to court in an auto rickshaw. Later, she found that her brakes had been tampered with, and the chief suspect was the transport lobby and timber mafia she was fighting in court that day.
CALLING OF THE WILD Rewind a decade and a half. Chengappa, the daughter of a successful Bangalore lawyer, had cruised through her LLB and was keen to get a postgraduate degree. Being young, aware of the nascent environmental movement, and from the richly endowed Coorg district of this UNESCO-listed and famously wildlife-filled corner of India (it has 10% of the country’s tigers and 25% of its elephants), environmental law was a natural choice for her LLM specialisation. And in knuckling down to the intensive research needed for her dissertation, Chengappa crossed paths with some of the leading conservationists of the time, like KM Chinnappa and Praveen Bhargav, who were doing lots of pioneering fieldwork at the same time as taking on the entire system with their grassroots conservation movement. “They had people threatening them and making their lives an absolute living hell,” says Chengappa; “… they and later Sanjay Gubbi [of Panthera] were incredibly inspirational to me.” She quickly recognised that all the significant issues were ending up in court, there to flounder due simply to a lack of proper legal representation.
SEPTEMBER 2014 | 47
PROFILE / ANU CHENGAPPA
So as a young lawyer she had found her calling. Now, as a fully qualified independent lawyer, Chengappa has a busy general practice spanning everything from land and civil cases to family law. But she’s been applying her legal (particularly litigating) skills to the environmental cause that is so close to her heart, “often 24/7”, continually over the past 12 years. “Sometimes my other cases have suffered,” she says. “Time is crucial if a company has started an illegal construction or is chopping down trees in a protected area, so if someone calls in the middle of the night and says they need you to present a
NO HIGHWAY: SIGNIFICANT VICTORY IN THE LEGAL BATTLE FOR THE WESTERN GHATS National Highways 67 and 212 slice right through the heart of the Bandipur National Park, an 800sq km sanctuary for tigers, leopards, langur monkeys, mugger crocodiles and many other species. That means roadkill, disruption of wildlife corridors, the spread of invasive toxic plant species and more logging and poaching. Something needed to be done. Forest officers requested a night closure of the two highways, and on 3 June 2009 the deputy commissioner of Chamrajnagar issued a closure order to night-time traffic from 9pm to 6am. Just a week later, however, the closure order was withdrawn as various parties opposing the night closure of the two highways filed a total of nine writ petitions. Anu Chengappa represented the Conservation India group, which itself engaged in intensive lobbying, and the state government filed an affidavit endorsing the night closure, based on ecological and biological grounds. Subsequently, many hearings took place in the High Court, where Chengappa put forth several important arguments that drew support from the Karnataka Government Counsel. Finally, on 9 March 2010, the High Court of Karnataka ordered the withdrawal of the order through which the highways had been reopened to night-time traffic, and held that the closure was extremely important to protect wildlife. Following the night closure of the Bandipur highways, the legal precedent was applied to get similar closures in three other reserves in other parts of India. Meanwhile, the wildlife of Bandipur continues to enjoy peaceful nights.
Source: Sanjay Gubbi/NCF/Panthera
48 | SEPTEMBER 2014
case in court the next morning, you have to be ready to go.” And almost all that work has been on a pro bono basis. (She charges for basic expenses incurred, but only “when the client can afford it”.)
CONSERVATION OR SELF-PRESERVATION? In the southern Indian context, fighting for tigers and other species in these still rather special but fragile parts of the world has little of the cachet and appeal it would have in the West. “Your credibility as a lawyer here is based on the fees you can charge, so if you’re not charging much people think your legal skills aren’t up to scratch and so you can’t find good work,” says Chengappa. “A lot of people still think that people involved in conservation are wild and crazy.” Courts and judges are also often none too receptive, and one could argue for good reason. “We’re an overlitigated nation and the courts are overloaded with matters varying from livelihood issues to the very basics of existence,” says Chengappa. “When we come in talking about saving trees and tigers, judges often feel they should be giving priority to more pressing matters like poverty and corruption. Almost always, conservation issues are viewed as antidevelopment. Convincing them a conservation matter requires judicial intervention at all is a big part of my work, and once a case is admitted that’s half the battle won.” Then comes the matter of taking on often-governmental agencies or very large and powerful corporations wielding formidable manpower, cash and clout and who often don’t mind playing dirty. The braketampering incident described above sits among many examples of underhand tactics Chengappa has had to deal with. Others include manipulative phone calls, her father’s old lawyer friends being deliberately employed as opposing counsel in an attempt to compromise her, and even a job offer with a government agency that would have conflicted her out of representing conservation groups.
“A lot of people still think that people involved in conservation are wild and crazy”
AUSTRALASIANLAWYER.COM.AU
“Almost always, conservation issues are viewed as antidevelopment. Convincing them a conservation matter requires judicial intervention at all is a big part of my work”
YOU CAN HELP TOO To find out more about the conservation of tigers and other wildcats in southern India and around the world, visit www.panthera.org
Maharashtra
Goa
Karnataka
Bangalore
Bandipur Tiger Reserve
Kerala
Tamir Nadu
Perhaps most nastily of all, one element of the ‘timber mafia’ had been trying to log illegally, in conjunction with putting a high-tension power line through a protected area. Chengappa had been helping to thwart those efforts in the courts. The company knew she was about to be married, and sent the bulldozers and chainsaws into the forest the day after her wedding, presuming the elaborate requirements of an Indian marriage would be keeping her busy for a while. The next day, her groom was driving her not away on a honeymoon but back to the court and into the thick of the action. What the opposition doesn’t realise is that they are only fanning the flames: “When things like that happen, you know you’re on the right track,” says Chengappa. For now, despite exponential global rises in environmental awareness, the life of a conser vation lawyer in southern India isn’t getting any easier. The precedent-setting victories (see box, p48) for which Chengappa and those behind her have worked so hard are smoothing the legal path for future progress in this common-law country, but finding lawyers willing to make the social and financial sacrifice necessary is almost as hard as finding a tiger out there in the precariously balanced forests. “What we desperately need,” says Chengappa, “is for more young lawyers to get involved in environmental litigation here.” AL
SEPTEMBER 2014 | 49
BUSINESS STRATEGY / LEADERSHIP
The diplomatic leader:
How to agree to disagree There’s a myth that disagreements are negative and are to be avoided at all costs. However, as business consultant Alexandra Tselios explains, if you avoid them entirely, you may never achieve truly effective business outcomes 50 | SEPTEMBER 2014
One of the biggest misconceptions that is detrimental to our society, in my opinion, is that a disagreement has a negative connotation to it. Too often, I hear people re-telling a discussion they had at work that was regarded as a disagreement, and they become upset and disillusioned by the event. Quite simply, a healthy team in a company moving forward is going to face disagreements. It is the only way conversations will be effective, outcomes can be achieved and targets can be met.
AUSTRALASIANLAWYER.COM.AU
There is a fine art to disagreeing with employees without seeming combative or stubborn, and all too often managers get caught up in the fact that ‘they know the business better’ or ‘they’ve been in the business longer’
Beware a leader who avoids conflict, or any sort of disagreement because the most effective leaders are the ones who are able to agree to disagree diplomatically. Leadership communication skills 101 suggests that a productive conversation has the ability to compare perspectives and make a decision. But what happens if a conversation becomes emotional or worse, an all-out argument? The key is to have the ability to separate yourself and look at the situation from a holistic point of view. How has this conversation derailed? What are all participants trying to achieve? Part of leading effectively is to have the ability to identify strengths in others that you lack, and navigate social nuances. One particular type of person that senior managers often surround themselves with is the Yes Man. This person consistently pats their manager on the back, never questions any decisions and generally flees when their CEO faces a huge legal dispute or failure. While these Yes Men can be fantastic motivators when the chips are down, their inability to provide an alternate opinion is ultimately their downfall. It’s crucial to feel a sense of team unity and have a defined goal, but it’s equally important for a manager to encourage
diplomatic disagreements with effective outcomes, something that’s not possible with a Yes Man. A business is built on its employees and every staff member is selected for their specialist skill-set and experience. A diplomatic leader is one that considers a variety of different perspectives and analyses this information when making their final decision. Understanding how the delivery of information can impact those around you is a crucial part of ensuring that a disagreement doesn’t result in a negative blow to productivity. Who wants to deal with a situation where the guy from accounts refuses to speak to the guy from sales, all over a conflict that wasn’t even personal? Sometimes, you cannot influence office politics, and people will not always get along, but how that affects a discussion is up to the diplomatic leader. The crux to effectively disagreeing is to ensure that all participants of a discussion feel as though they have been understood and validated, even if their suggestions aren’t adopted in the resolution.
THE ART OF DISAGREEING There is a fine art to disagreeing with employees without seeming combative or stubborn, and all too often managers get caught up in the fact that ‘they know the business better’ or ‘they’ve been in the business longer’. With differing opinions, there must come detachment. Don’t make it about being right or wrong, but have the overall goal of finding the best outcome for the business. Managers should make quality decisions based on data and facts, and this can only be done if they are able to diplomatically disagree when required. Because every staff member comes with their own filter on how they view and behave with conflict, a manager needs to have a tight rein on their own personal reaction to disagreements. Before engaging in any disagreement, whether it’s between colleagues, companies or competition, it is
SEPTEMBER 2014 | 51
BUSINESS STRATEGY / LEADERSHIP
THE 6 STYLES OF LEADERSHIP Directive – a coercive style that demands compliance and can contaminate everyone’s mood and drive talent away. To be used sparingly – in a crisis or to kick-start an urgent turnaround. Visionary – inspires and is able to explain how and why people’s efforts contribute to the ‘vision’. Moves people towards shared outcomes through empathy and clarity. Affiliative – creates harmony that boosts morale and solves conflict – a useful style for healing rifts in a team or for motivating during stressful times. Participative – superb listener, team worker, collaborator and influencer. Values people’s input and gets commitment through participation. Pacesetting – strong drive to achieve through their own efforts, has high personal standards and initiative. Can be impatient and prone to micromanaging and leading only through example. Coaching – listens and helps people identify their own strengths and weaknesses. Encourages, delegates and improves performance by building their people’s long-term capabilities. Source: Hays Group
Alexandra Tselios is a business consultant and publisher of The Big Smoke. She has a diverse background in corporate, public and creative fields and is an expert business consultant. Visit www. thebigsmoke.com.au
essential to leave the ego at the door and identify why a disagreement is occurring. Sometimes it is simply a clash of personalities, but more often than not, it’s because someone can see something that you can’t. Consider the fact that this colleague or client may be providing you the opportunity to gauge a fresh perspective you didn’t have the latitude to scope. This is why a top-tier manager should be able to value the differences of those around them, rather than employ a strict autocratic leadership model.
NEGOTIATE AND COMPROMISE Negotiation skills and compromise are another key part of being a diplomatic leader and the best managers are able to negotiate in such a way that they receive the outcome they desire, without the other parties realising they’ve compromised on 52 | SEPTEMBER 2014
their original position. Leadership is about surrounding yourself with a group of advisors, and if you build a reputation of being unmovable, you can quickly find yourself alone. Ultimately, by creating a company culture conducive to discussion and feedback, you are facilitating a change around the myth that disagreements are negative. The right way to disagree with others is only possible after you have listened to all perspectives while considering the impact on whatever decision is finally decided on. Whether you agree or not isn’t the point; the point is what resolution is best for the company, the team and clients. Until you respect the opinions of others, they are unlikely to respect yours, but once a culture of discussion and appreciation is fostered, it will be far easier to make a decision that will be adhered to by even your strongest opponents. This is why it is important to have a healthy balance of personality types on your team who are capable of both encouraging and challenging. I have often heard the meekest of voices challenge me in a meeting, but once they realised it is absolutely welcomed, they gain confidence and a discussion can truly start to form. This is not the time to assert your leadership position, or flaunt your dominance; this is the time to show your employees that you value their strengths and want them to contribute fully. One of the strongest qualities of a good leader is their ability to say no to something without causing tension or resulting in loss of employee morale. Use each disagreement as an opportunity for greater understanding. If a staff member offers a suggestion that isn’t in line with company procedure or standard, take the time and brainstorm together the reasons it won’t work, and what an alternative could be, instead of belittling or disregarding the individual. The core of a diplomatic leader comes down to respecting and valuing the strengths in those around them. This has nothing to do with personality differences or clashes, and everything to do with the ability to listen, respond and validate. If it is second nature to be avoidant of conflict, you simply need to get over it because quite frankly, conflict can be a productive and important part of analysing data and reaching decisions. Diplomatic leaders have to be comfortable that they are responsible for decisions that drive the company to success, as well as the decisions that don’t work as well as planned; they need to be at ease with their own leadership abilities, and clear on the gaps that require personal investment. AL
RESOURCES
Book Preview: R v Milat: A Case Study in Cross-Examination by Dan Howard SC The story behind the 1996 trial of serial killer Ivan Milat on seven counts of murder and one count of ‘detain for advantage’, while extremely tragic, is a gripping one. After a trial lasting nearly three months, the accused took the witness stand and gave his account of events, in which he denied any involvement in these horrific crimes. Then an inspired, careful and methodical cross-examination by a highly skilled prosecutor, Mark Tedeschi QC, drawing on the mass of incriminating evidence assembled by one of the largest police task forces ever established in Australia, emphatically demonstrated the overwhelming strength of the Crown’s case to the extent that the defence case unravelled and was exposed for the sham it was. A study of this cross-examination reveals much about the art of advocacy and questioning.
ABOUT THE BOOK R v Milat: A Case Study in CrossExamination presents the actual transcript of Crown Prosecutor Mark Tedeschi QC’s cross-examination of Ivan Milat at his trial in the Supreme Court of New South Wales for the notorious series of murders in the Belanglo State Forest that became known as the Backpacker Murders. The author, Dan Howard SC, who was Tedeschi’s junior counsel at the trial, has extensively annotated the trial transcript with comments that provide insights into the techniques of advocacy used by the crossexaminer in this singular case study of the art of cross-examination. R v Milat: A Case Study in CrossExamination is published by LexisNexis.
A Crown Prosecutor at the time, I had the privilege of being Mark Tedeschi’s junior counsel throughout the entire trial, and so had close involvement in all aspects of the case, including a seat next to Tedeschi at the bar table and also in the prosecutor’s chambers from which to take part in and follow his entire preparation and presentation of the case. Later in my career I spent some years as Director of the Postgraduate Prosecutions Program at the University of Wollongong, where I taught advocacy in criminal trials. I became aware that while there are innumerable books about cross-examination techniques they invariably rely upon brief extracts of a few questions and answers, usually from famous old trials, that are used (and often repeatedly ‘trotted out’ in books on the subject) to demonstrate the effectiveness of a particular manner of approach in particular situations. While such an approach can certainly be helpful, it is very incomplete and unsatisfying. A far better way to learn the skills required for effective crossexamination is to study an entire cross-examination from beginning to end, whereby one can see the rising and falling tensions of the moment, to which the cross-examiner must respond, on the run and to the best of his or her ability, with the best line of attack that they can. This will reveal the degree to which the advocate has mastered the brief and marshalled the evidence, which will be reflected by the adroitness of their response to the ebb and flow of the course of the evidence. One can also see the development of entire lines of questioning and the tenacity and persistence that can be required to see them through to an effective conclusion. Along the way, one also learns almost the entire story of the case, as the cross examining prosecutor must put to the accused any disputed relevant propositions and inferences that the cross-examiner will submit to the jury are established by the evidence, in accordance with the well-established rule of fairness exemplified by the case of Browne v Dunn. Furthermore, by understanding the narrative or story of the case, particularly if this is illustrated with images of the very exhibits that were tendered in the trial and used by the cross-examiner, the reader can better appreciate the skills deployed by the cross-examiner in his or her approach to questioning, against the factual background and context of the case. It also provides a richer and more satisfying understanding of the case itself. AL
SEPTEMBER 2014 | 53
LEGAL INSIGHT
THE NEXT WAVE
This original research into the lives and minds of today’s law students provides an intriguing insight into who you might have on your team within the next couple of years
● Hours spent studying each week
● How often do you feel overwhelmed by your workload at law school? Never Rarely Sometimes
1.1% 13.6% 24.9% 30.7% 18.0% 11.7% None
1-5 hours
6-10 hours
11-20 hours
21-30 hours
30+ hours
22.1%
1-2 times
28.5%
3-5 times
20.2% 11.9% 9.8%
6-10 times More than 10 times All of the time 0
54 | SEPTEMBER 2014
15
All of the time
0
25
50
● Main reasons for skipping lectures
● How often do you skip lectures in a typical semester, other than as a result of illness? Never
Most of the time
0.8% 7.4% 50.1% 32.4% 9.3%
7.4%
30
28.5%
I prefer to listen online
11.9% I can’t attend due to other commitments
20.2%
They’re boring
9.8% Timing of lectures
AUSTRALASIANLAWYER.COM.AU
● How often do you feel stressed at law school? Never
0.5%
Rarely
5.1% 41.7%
Sometimes
● How often do you feel stressed about finding a relevant job after you graduate? Never
5.0%
Rarely
9.6%
Sometimes
32.9%
Most of the time
39.4%
Most of the time
30.3%
All of the time
13.3%
All of the time
22.2%
0
20
0
40
● Main causes of stress
25
40
● Working while studying
16.5% The amount of study I have to do for my law degree
34.3% Balancing study and other commitments (such as work or family)
5.4%
9.8% 65.7% 7.7% 16.8% Working full-time
Working part-time
Only working during university holidays
Not working
● Career plans
Personal financial situation
14.2% Finding a job when I graduate
23.5% 0
20
66.2% Intend to work as a lawyer
Trying to get good marks
40
6.6% 27.2%
Do not intend to work as a lawyer
Not sure
Source: Survive Law Australian Law Student Satisfaction Survey (2013). survivelaw.com
55 | SEPTEMBER 2014
OPINION
Playing the age card NSW Young Lawyers president Thomas Spohr talks about the words every early-career lawyer hates hearing
Thomas Spohr is the president of NSW Young Lawyers and a councillor of the Law Society of NSW. He is employed by the NSW DPP
“There is nothing inherent in experience that makes, for example, a legal submission made by a younger person inherently any less legally valid”
56 | SEPTEMBER 2014
You might be forgiven for suspecting that Generation Y, or any person who is close enough in age to be perceived as having remotely similar characteristics, is the worst generation of lawyers ever. One certainly reads sufficiently often about their misplaced feelings of entitlement and competence, and about how much easier they have it. Entrusted as I am with the responsibility of representing them, as president of NSW Young Lawyers – an organisation which represents nearly 40% of the profession, and all law students – you will forgive me if I disagree with that prejudice with a certain fervour. But maybe that prejudice is why most young lawyers will have heard another practitioner start a sentence with “I have been a lawyer for however many years” and go on to sweep aside as invalid any opinion that junior lawyer might have. It is, I am afraid, a common experience. In negotiations: “I have been a lawyer for 30 years, and I can tell you that this is a very generous offer” (it probably isn’t). In correspondence: “I have been doing this for a long time, and you should know that you are skating on very thin ice here” (they probably aren’t). Or in court: “I have been doing this much longer than you, and I can tell you that if you make that submission, the court will laugh you out the door” (it almost certainly won’t). Statements such as this attempt to diminish the value of the younger lawyer’s opinion, based on no more than an accident of age. It shows that the speaker is unwilling – or unable – to engage in the merits of the debate. And it risks that young lawyer suspecting that the other lawyer actually doesn’t know what they are talking about and is trying to hide it. This is not to discount the value of experience. Plainly, experience enables us all to rely on past mistakes or successes in order to make better decisions in the future. But there is nothing inherent in experience that makes, for example, a legal submission made by a younger person inherently any less legally valid. And if there is, then would it not be more effective to use the experience gained over however many years in order to argue the merits
of the debate, rather than just pointing to the experience as some kind of ‘Get Out of Arguments Free’ card? It is also obvious that exclaiming about one’s own level of experience is helpful when speaking to clients. Clients want – indeed deserve – to feel confident in the quality of their lawyer, and nothing in this article should be seen to suggest that discussing or using one’s experience is universally (or even generally) bad. But when it is applied to one’s colleagues in this way, it can very nearly answer the description of bullying. But inter-age relations among lawyers are not all bad. I have a very clear memory of a matter, now a comparatively long time ago, from the first months of my career. I appeared opposite an extremely experienced advocate who approached me before court to ask my position on a particular topic in the case. It transpired that we were at odds, to which he replied, with sincere respect, “No, of course – please don’t let me influence your decision. You, with respect, should absolutely make the submission that you think is correct.” I don’t recall the outcome of the matter, but if my submission was not accepted, I don’t think it would have bothered me very much that day. I have a similar memory of a social occasion upon which I discussed the effect of a particularly vague (but important) High Court judgment with a very eminent Supreme Court judge. He had, it has to be said, no good reason to particularly care what my views were about the judgment – quite literally, his word would become law on the issue only about three months later. But the genuineness with which His Honour was willing to engage in a back and forth about the topic has stuck with me. I cannot speak to whether His Honour gained anything at all from my views on the topic, and in a way that isn’t to the point – rather, the fact was that he was willing to offer me the respect of considering my views on their merits without even a hint of prejudgment. The disdain with which some practitioners hold young lawyers is not just deeply disappointing; it is dangerous. It risks dismissing perfectly valid opinions, and it discourages young practitioners from applying intellectual rigour to legal questions simply because they are afraid. It risks a cycle in which young lawyers will doubt the competence of those who use age against them but will, in the fullness of time, use the same tactics against those below them. Older lawyers discount the talents of younger lawyers at their peril. I hope I will be different. AL
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