Australasian Legal Business (OzLB) Issue 8.4

ISSUE 8.4

2010 Macquarie-ALB Law Awards Is your firm a finalist?

ALB Careers Guide Competition for talent simmers again

Privatisation Firms wield the gavel

SYDNEY 2010

Back to the glory days?

DEALS ROUNDUP

US, UK REPORTS

INDUSTRY ANALYSIS

APPOINTMENTS

CAPITAL MARKETS, M&A DATA

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ISSUE 8.4

EDITORIAL >>

2010 Macquarie-ALB Law Awards is your firm a finalist?

ALB Careers Guide Competition for talent simmers again

Privatisation Firms wield the gavel

SyDNEy 2010

Straight talkin’

W

hat’s in a brand? Last month ALB reported on an illuminating exercise by professional services consultant Ron Pol on how exactly clients, and indeed firms themselves, perceive law firm branding.

Pol trawls law firm websites collecting brand descriptions which largely comprise of uninspired phraseology such as “top-tier law firm”, “a fullservice Australian commercial law firm”, “one of the largest full-service law firms” or “a leading international legal practice”. The remarkable part of the exercise was that when Pol presented partners with a list of brand statements, most partners were unable to identify which statement came from their own firm website. That says a great deal about the uniqueness of law firm branding.

Marketing experts will point out that many of these descriptions are designed to satisfy the expectations of clients themselves. It is understandable that a client with important work to entrust will need some reassurance that their prospective legal advisor is indeed “top-tier” or “one of Australia’s largest fullservice firms.” However, it is debatable whether a client dealing at the top end of the market would not already have a fairly good idea of who exactly is “top-tier” and who is not.

A few years ago, Middletons adopted the simple slogan “straight talking”. The move was met with some internal resistance by those who felt that “straight talking” was not sufficiently removed from the less flattering “fast talking”.

Nonetheless, the slogan is an example of how a brand statement can be a simple, powerful statement of a firm’s culture and identity.

As pleasing as blandishments such as “excellence” and “commitment to excellence” must be, the Middletons approach sets a standard for the directness and simplicity which will serve a law firm well in the perennial pursuit of client engagement. You can bet this is one firm that won’t suffer the ignominy of not being able to recognise their own brand when Pol comes to visit.

Back to the glory days?

DEALS ROUNDUP

US, UK REPORTS

iNDUSTRy ANALySiS

APPOiNTmENTS

CAPiTAL mARKETS, m&A DATA

www.legalbusinessonline.com

IN THE FIRST PERSON “We had a lot of capital raising work late last year and this year we’ve seen a lot of M&A and project work in resources and other large transactions” Robert Milliner, Mallesons (pg11)

“We’ve gone back to a more

traditional industrial environment with more tribunal focus, and that’s seen an upsurge in tribunal litigation, particularly around bargaining processes” Campbell Fisher, FCB Workplace Lawyers (pg43)

“Where there is an exposure, underwriters are trying to manage the risks in-house ... there is definitely a focus on not letting matters just get caught on the litigation treadmill” John Moore, Thynne & Macartney (pg71)

It is debatable whether a client dealing at the top end of the market would not already have a fairly good idea of who exactly is “top-tier” and who is not

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Australasian Legal Business ISSUE 8.4

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contents >>

contents

ALB ISSUE 8.4

46 AUSTRALASIAN 2010

AUSTRALASIAN 2010

76

COVER STORY 22 ALB Special Report: Sydney 2010

Sydney may have lost some of its lustre during the financial crisis, but firms are confident that the Harbour City is set to regain its sparkle

28 SPECIAL SUPPLEMENT: ALB

LEGAL CAREERS GUIDE 2010

Salaries are thawing and recruitment ads are back as the legal job market returns to health.

In this special supplement, ALB provides the market information crucial for those looking to take the next step

ANALYSIS 10 Law firms and the crystal ball What do recent economic indicators say about the potential market for legal services for the remainder of 2010? Some big-hitters speak out 12 Privatisation Privatisation advice has proven to be a solid line of work for law firms during the recent downturn – and there’s more to come

FEATURES 46 ALB Australasian Law Awards 2010 Revealed! All the finalists for the upcoming ALB-Macquarie Bank Law Awards 70 Insurance The financial crisis fallout continues for insurance practices – and now a new regulatory twist is keeping firms on their toes

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76 Litigation How have the region’s litigation practices been faring of late?

PROFILES 42 ALB-LexisNexis Managing Partner series:

Campbell Fisher, FCB Workplace Lawyers Fisher speaks about the future direction of employment law practices, and why he can beat the top tier 66

ALB-Kensington Swan In-house profile: Louise Baldwin, Centennial Coal The general counsel opens up about the coal industry and some classic “dos and don’ts” for external advisors

REGULARS 6 DEALS 14 NEWS • DLA Phillips Fox clarifies Adelaide structure • New appointees to Takeovers Panel • McCullough Robertson restructures to encourage entrepreneurship • Sydney vies for piece of international dispute resolution market • Lawyers must learn the art of the pitch, says ALPMA presenter

42 COLUMNS 13 Legal traveller 15 17 20 80

US Report UK Report In-house Q&A Capital markets deals data

81 M&A deals data

COMMENTARY 19 Employment law Sparke Helmore 40 New Zealand Buddle Findlay 62 Regulatory Mallesons stephen jaques

Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as Australasian Legal Business can accept no responsibility for loss.

australasian legal business ISSUE 8.4

NEWS | deals >>

deals in brief

• First retail bond issue for 2010 • ALE Property is seeking to raise approximately A$100m with its unsecured notes offering • Last year AAR and Finlaysons acted for ALE on the sale of six hotels valued at more than A$36m. AAR advised on the company’s A$105m equity raising last August

| BANKING & FINANCE | ►► SOUTHERN CROSS MEDIA GROUP REFINANCING A$375m Firm: Clayton Utz Lead lawyers: Geoff Geha, Alex Schlosser Client: Southern Cross Media Group Firm: Mallesons Stephen Jaques Lead lawyer: Alex Regan Clients: NAB, ANZ, BOS International, GE Capital, WestLB, Macquarie Bank

| ENERGY & RESOURCES | ►► BG-CNOOC CURTIS LNG SALE– EQUITY INVESTMENT Firm: Mallesons Lead lawyers: James Fahey Hayden Flinn Client: BG Group

| DEBT MARKET | ►► ALE PROPERTY RETAIL BOND ISSUE A$100m James Fahey Mallesons

• Deal could potentially be worth up to A$80bn and be Australia’s largest -ever export deal • Mallesons advised Chevron on aspects of its A$43bn Gorgon LNG

6

• Bid follows on from Shell’s acquisition of 30% of Gary Besson Arrow Energy’s Gilbert + Tobin resources, which included interests in coal seam gas tenements that provide potential gas supply for LNG production. AAR advised on previous acquisition • Shell’s 50-50 joint venture with PetroChina, the oil and gas producer and distributor, highlights China’s arrival as a significant investor in Australia’s coal seam gas industry • A successful deal will substantially enhance the Shell Curtis Island LNG project, off Gladstone on the central Queensland coast

| INSURANCE |

• Southern Cross Media Australia has entered into an agreement with a consortium of banks for a refinanced facility of A$375m in place of its existing business level debt facility

►► MMC CONTRARIAN CAPITAL RAISING/ACQUISITION OF BUPA AUSTRALIA LIFE INSURANCE AND WEALTH MANAGEMENT BUSINESS

• Banking & financial services partners Geoff Geha and Alex Schlosser advised on the syndicated facility agreement with NAB, ANZ, BOS International, GE Capital, WestLB and Macquarie Bank

Firm: Allens Arthur Robinson Lead lawyer: Robert Pick Client: CBA Institutional Equities (lead manager/ underwriter)

• Partner Alex Regan from Mallesons Stephen Jaques advised the lenders

| M&A | ►► SHELL/PETROCHINA–ARROW ENERGY JV BID A$3.8bn

Firm: Herbert Smith Client: CNOOC Firm: Freehills Client: CNOOC

project on Barrow Island in Western Australia • Mallesons also advised Arrow Energy on the current Petro-China/ Royal Dutch Shell bid before withdrawing because of conflict of interests

Client: Arrow Energy

Firm: Allens Arthur Robinson Lead lawyers: Andrew Knox, Chelsey Drake Client: Royal Dutch Shell

Firm: Allens Arthur Robinson Lead lawyer: Stuart McCulloch Client: ALE Property Group

Firm: Blake Dawson Lead lawyers: Justin Shmith, Paul Newman, Marie McDonald Client: PetroChina

Firm: Freehills Lead lawyer: Philippa Stone Client: Macquarie Capital Advisers

Firm: Gilbert+Tobin Lead lawyers: Gary Lawler, Garry Besson, Marko Komadina

Firm: Baker & McKenzie Lead lawyer: Guy Sanderson Client: MMC Contrarian Firm: Freehills Lead lawyer: Brad Russell Client: Bupa Firm: Henry Davis York Lead lawyer: Ian Enright Client: MMC Contrarian • Extraordinary general meeting of MMC shareholders will be held on 30 April to approve various aspects of acquisition, including capital raising • Freehills also previously advised BUPA on its successful application for informal clearance from the ACCC for the merger of BUPA and MBF

Australasian Legal Business ISSUE 8.4

NEWS | deals >>

| M&A | ►► METCASH–MITRE 10 ACQUISITION

►► YOUR MONTH AT A GLANCE Firm

Jurisdiction

Deal name

A$m Practice

Allens Arthur Robinson

Australia

Shell/Petrochina–Arrow Energy bid

3,600 M&A

Australia

MMC Contrarian capital raising

Australia

ALE Property bond issue

100

debt

Australia

Horizon Living and Horizon Care–Links Seaside sale

N/A

M&A

Australia/ Guinea/China

Rio Tinto and Chinalco JV

1,480

M&A

Arnold Bloch Leibler

Australia

Horizon Living and Horizon Care–Links Seaside sale

N/A

M&A

Baker & McKenzie

Australia/ Guinea/China

Rio Tinto and Chinalco JV

1,480

M&A

Australia

Staples–Corporate Express Australia takeover

1,000

equity

Australia

MMC Contrarian capital raising and acquisition of Bupa Australia life insurance/wealth management

Australia

Shell/Petrochina–Arrow Energy bid

Firm: Middletons Lead lawyer: Jol Rogers Client: Mitre 10 Firm: Freehills Client: Metcash • Middletons has acted for Mitre 10 for over 50 years since the company’s inception • More recently advised the group on store acquisitions and divestments, a prospectus to convert members’ loan funds into equity and a convertible note issue to recapitalise balance sheet

Blake Dawson

135 equity

195 equity, M&A 3,600 M&A

Australia

Molopo Energy equity raising

Chapman Tripp

New Zealand

L&M Energy–L&M coal seam gas acquisition

Clayton Utz

Australia

Molopo Energy equity raising

Australia

Southern Cross Media Group–corporatisation

N/A

corporate

Australia

Southern Cross Media Group–refinance

375

banking & finance

Conyers Dill & Pearman

Bermuda

Southern Cross Media Group–corporatisation

N/A

corporate

Corrs Chambers Westgarth

Australia

Staples–Corporate Express Australia takeover

1,000

M&A

Davis Polk & Wardwell

US

Greenhill–Caliburn Partnership acquisition

218

M&A

DibbsBarker

Australia

Nestle Purina Petcare– KraMar Pet Company acq

N/A

M&A

Freehills

Australia

Miclyn Express IPO

N/A

equity

Australia

MMC Contrarian capital raising and acquisition of Bupa Australia life insurance/wealth management

195 equity, M&A

Firm: Conyers Dill & Pearman Client: Southern Cross Media Group

Australia

Greenhill–Caliburn Partnership acquisition

233

M&A

Australia

ALE Property bond issue

100

debt

Firm: Mallesons Stephen Jaques Lead lawyers: Susan Hilliard, Greg Golding Client: Macquarie Capital Group

Australia

Miclyn Express Offshore–Samson Maritime stake acq

N/A

M&A

Australia

BG-CNOOC Curtis LNG sale, equity investment

N/A

energy & resources

| CORPORATE | ►► SOUTHERN CROSS MEDIA GROUP INTERNALISATION/ CORPORATISATION Undiscl Firm: Clayton Utz Lead lawyers: Karen Evans-Cullen, Toby Ryston-Pratt Client: Southern Cross Media Group

Susan Hilliard Mallesons Stephen Jaques

• Southern Cross Media Group is a long-time client of Clayton Utz

• Both Clayton Utz and Mallesons Stephen Jaques acted on the recapitalisation involving Southern Cross Media Group last year

A$233m Firm: Freehills www.legalbusinessonline.com

M&A

60 equity

Australia

Metcash–Mitre 10 acquisition

Gilbert + Tobin

Australia

Shell/Petrochina–Arrow Energy bid

Herbert Smith

Hong Kong

BG-CNOOC Curtis LNG sale, equity investment

N/A

Henry Davis York

Australia

MMC Contrarian capital raising and acquisition of Bupa Australia life insurance/wealth management

195 Equity, M&A

Kensington Swan

New Zealand

L&M Energy–L&M coal seam gas acquisition

N/A

M&A

New Zealand

HRV–sale of HRV Group

N/A

M&A

Middletons

Australia

Miclyn Express Offshore–Samson Maritime stake acq

N/A

M&A

Minter Ellison Rudd Watts

New Zealand

HRV–sale of HRV Group

N/A

M&A

Mallesons

Australia

BG-CNOOC Curtis LNG sale, equity investment

N/A

energy & resources

Australia

Southern Cross Media Group–corporatisation

N/A

corporate

Australia

Southern Cross Media Group–refinance

375

banking & finance

Australia/US

Greenhill–Caliburn Partnership acquisitIon

233

M&A

Australia

Nestle Purina Petcare–KraMar Pet Company acq

N/A

M&A

Australia

L&M Energy–L&M Coal Seam Gas acquisition

N/A

M&A

| M&A | ►► GREENHILL–CALIBURN PARTNERSHIP ACQUISITION

60 equity N/A

Piper Alderman

55

M&A

3,600 M&A Equity,

Does your firm’s deal information appear in this table?

Please contact

alb@keymedia.com.au

61 2 8437 4700

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NEWS | deals >>

| M&A |

Lead lawyer: Tony Damian Client: Caliburn Partnership Firm: Mallesons Stephen Jaques Lead lawyers: Joshua Cole, David Friedlander, David Wood Client: Greenhill & Co

►► IR–LINKS SEASIDE FACILITY ACQUISITION Undiscl

David Friedlander Mallesons Stephen Jaques

Firm: Davis Polk & Wardwell Lead lawyers: John Knight, James Elworth Client: Greenhill & Co

• Greenhill will acquire 100% ownership of Caliburn in exchange for Greenhill common stock • Greenhill & Co is a US investment bank located in New York • Caliburn Partnership is an independent financial advisor; revenue for the fiscal year ended 30 June 2009 was A$68m

| M&A | ►► MICLYN EXPRESS OFFSHORE IPO/ACQUISITION OF SAMSON MARITIME Undiscl Firm: Freehills Lead lawyers: Philippa Stone, Tony Sparks Client: Miclyn Express Offshore Firm: Middletons Client: Samson Maritime • Freehills’ equity capital markets team has also acted for Myer on its recent IPO, and the Elders, Santos, Woodside and Lendlease secondary raisings last year • Negotiation was conducted in a tight timeframe and in the midst of preparing for the launch of the IPO

Firm: Arnold Bloch Leibler Lead lawyers: Andrew Silberberg, Paul Rubenstein Client: Horizon Living and Horizon Care Firm: Allens Arthur Robinson Lead lawyers: Mark Stubbings, Tom Story, Alan Maxton, Ross Stitt Client: IRT • IRT is a not-for-profit retirement living and aged care provider • Arnold’s has been working with the property’s various owners regarding the financial side of the sale, as well as with Horizon Living and Horizon Care on the commercial and property aspects • AAR provided advice on the property and aged care aspects of the transaction, business acquisition documentation, financing and GST advice

• Kensington Swan advised on the interface between the ASX Listing Rules and the NZX, as well as the application to the Panel for an exemption from certain Takeovers Code requirements and seeking the Takeovers Panel’s approval of the notice of meeting

| M&A/EQUITY | ►► STAPLES–CORPORATE EXPRESS AUSTRALIA TAKEOVER A$1bn Firm: Baker & McKenzie Lead lawyers: Ben McLaughlin, Hal Lloyd, Tim Sherman Client: Corporate Express Australia Firm: Corrs Chambers Westgarth Lead lawyers: Braddon Jolley, Byron Koster, James Rozsa Client: Staples

Andrew Silberberg Arnold Bloch Leibler

| M&A | ►► L&M ENERGY–L&M COAL SEAM GAS ACQUISITION A$43m-A$95m Firm: Kensington Swan Lead lawyers: Bryan Gundersen, Rodney Craig Client: L&M Energy Firm: Piper Alderman Client: L&M Energy Firm: Chapman Tripp Client: L&M Coal Seam Gas

“We are pleased to have advised on another significant IPO, after the firm’s involvement in Myer and Kathmandu” Philippa Stone, Freehills 8

• L&M Energy is dual ASX- and NZXlisted; acquired all of the shares in L&M Coal Seam Gas in exchange for the issue of new shares and options

• Staples has offered to acquire all of the issued shares in Corporate Express that it doesn’t already own, for consideration of A$5.60 per share; that values Corporate Express at approximately A$1bn • Baker & McKenzie has acted for Corporate Express since 1995, has completed 60 acquisitions for them and advised on numerous capital transactions • This relationship proved to be useful as Corporate Express was able to take advantage of Baker & McKenzie’s knowledge of the company in this transaction

| M&A | ►► RIO TINTO/CHINALCO JV A$1.48bn

Firm: Allens Arthur Robinson Lead lawyers: Scott Langford, Richard Kriedemann, Nic Tolé Client: Rio Tinto Firm: Baker & McKenzie Lead lawyers: Stanley Jia, Andrew Lucas Client: Chinalco

• Rio Tinto and Chinalco have entered into a non-binding memorandum of understanding in respect of a Stanley Jia joint venture Baker & McKenzie to develop and operate the Simandou iron ore project in Guinea • Once Chinalco has paid US$1.35bn for its interest, the Rio Tinto and Chinalco effective interests in the project will be 50.35% and 44.65% respectively. The International Finance Corporation will hold the remaining 5% • In the past 18 months, AAR has worked with Rio Tinto on matters spanning Asia, Africa, Europe and North and South America, as well as Australia

| M&A | ►► NESTLE PURINA PETCARE– KRAMAR PET COMPANY ACQUISITION Undisc Firm: Mallesons Stephen Jaques Lead lawyers: Katrina Rathie, Michael Barker, Sharon Henrick Client: Nestle Australia’s Purina PetCare division Firm: DibbsBarker Lead lawyers: John Reen, Peter Burden (consultant), Paul Almond (special counsel) Client: AMP Private Equity, CHAMP Ventures and other shareholders • Acquisition represents an important step in Nestle Purina PetCare’s strategy of transitioning from a pet food to a pet care company • Follows on from Nestle Purina PetCare’s acquisition of Supercoat petfoods, on which Mallesons Stephen Jaques also advised • Team from Mallesons Stephen Jaques advised on the M&A, IP and competition aspects of the deal

Australasian Legal Business ISSUE 8.4

NEWS | deals >>

www.legalbusinessonline.com

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NEWS | analysis >>

ANALYSIS >>

►► INDUSTRY COMMENT Given the February results of listed companies and other economic indicators, what is your perception of the current and potential market for legal services?

BILL FAZIO Herbert Geer “There is a more stable mood. The general sense is that it’s not a boom time, but [clients] need to get on with business – buy something, sell something, do a restructure. For example, if you’ve deferred buying new IT systems and those updates were overdue before the GFC, they are going to be even more overdue now”

DANNY GILBERT Gilbert+Tobin “M&A is looking more positive, but I don’t see a wall of work. But it is looking better and there is more interest in the private equity space. All of our practice areas are strong except property, which is still in recovery”

MARK PISTILLI Chang, Pistilli & Simmons “I think [listed companies] have all done incredibly well in most cases. The market really rewards those with good half-year results and punishes those without – so [for M&A] those that are rewarded will move away from being targets because they become more and more expensive”

PAUL HOPKINS Carter Newell “As Australia’s economic outlook brightens, dormant projects are coming to life and latent growth is occurring across our clients’ industries. However, management of cash flow and availability of credit are still of concern to our clients, as is the ability to find and retain skilled staff, with early signs that a return to a skills shortage is emerging”

PETER TURNER ACLA “2010 is probably going to be more of a consolidation year, with people working out what real value means. It’s hard to say what effect this will have on legal services – perhaps nothing has really changed – and there will be as much if not more demand for in-house legal services, probably more equity market activity, including IPOs, and maybe more M&A”

ROBERT MILLINER Mallesons Stephen Jaques “Overall it’s a bit more positive than last year. People are saying that the prospects for a double-dip recession are fading a bit. We’re not up to the same levels [of work activity] as early 2008 but, it’s starting to go the right way”

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Seeds of time...

Economists are feeling optimistic about current market conditions – but is that optimism filtering through to the legal sector?

"O

ften wrong, but never in doubt.” That pearl of wisdom from American government official Ivy Baker Priest has frequently been applied to the art of economic forecasting, and not without some justification. It is, therefore, with some trepidation that ALB invited a sample of key legal industry figures to make their predictions for workflows for the remainder of 2010.

The context for the discussion is clearly positive, as the February reporting season has brought forth improved results for listed companies.

The Australian Financial Review’s quarterly survey of economists found the median forecast for growth in FY2011 was 3.5%. A recent Australian Bureau of Statistics’ business capital expenditure survey has revealed some extremely bullish sentiment.

While these positive economic signs have been present for some time, for the large part of 2009 firms remained unconvinced. Has the latest round of economic indicators prompted a change of heart? Mallesons’ Robert Milliner said that cautious optimism was the theme of the day. “Overall it’s a bit more positive than last year; people are saying that the prospects for a doubledip recession are fading a bit,” he said.

“We’re not up to the same levels [of work activity] as early 2008 but it’s starting to go the right way. We had a lot of capital raising work late last year and this year we’ve seen a lot of M&A and project work in resources and other large transactions. The property market has also picked up at the Australasian Legal Business ISSUE 8.4

NEWS | analysis >>

sophisticated end.”

Paul Hopkins of Carter Newell said that most of the listed companies his firm acts for have recorded solid halfyear results and seem to be in a stable position for growth. “As Australia’s economic outlook brightens, dormant projects are coming to life and latent growth is occurring across our clients’ industries,” he said.

“However, management of cash flow and availability of credit are still of concern to our clients, as is the ability to find and retain skilled staff, with early signs that a return to a skills shortage is emerging.”

Hopkins said that he is optimistic about workflows in Carter Newell’s key specialist areas, such as resources, corporate advisory and commercial litigation. However, Australian Corporate Lawyers Association chief executive officer Peter Turner warns against reading too much into the February results. “The trouble with results – and there have been a fair number of full-year results announced recently – is that they are backward looking,” he said.

“Also, if you don't hit the consensus numbers, you get smashed by the market. So none of that is much of a predictor of legal spend.”

Mark Pistilli of Chang, Pistilli & Simmons said that the February results carried implications for M&A activity. “I think [listed companies]

www.legalbusinessonline.com

have all done incredibly well in most cases. The market really rewards those with good half-year results and punishes those without – so those that are rewarded will move away from being targets because they become more and more expensive. It shows that companies are a lot healthier than people feared they might be.”

Having secured a prized recruit in Peter Cook from Mallesons, Gilbert + Tobin’s Danny Gilbert is expecting to secure a greater market share of M&A work, but he also said the broader

“We had a lot of capital raising work late last year and this year we've seen a lot of M&A and project work in resources and other large transactions. The property market has also picked up at the sophisticated end” ROBERT MILLINER, MALLESONS

market is looking healthier. “M&A is looking more positive, but I don’t see a wall of work. But it is looking better and there is more interest in the private equity space. All of our practice areas are strong except property, which is still in recovery.”

Turner said that for the in-house

profession, 2010 is likely to be a consolidation year, with more focus on the real meaning of value. He said that demands on in-house teams will remain steady, and perhaps increase.

Turner noted that some studies have suggested that general counsel, rather than law firms, are now assuming the role of 'trusted advisor' and are in a position to dictate how the market develops.

“If that is correct then even with a good reporting year behind them corporations are likely to continue to continue to seek value from their legal advisors, and to keep a tight lid on legal spend,” he observed.

Robert Milliner also expressed concern over the uncertain environment created by the Federal government, particularly in the context of the upcoming Federal election.

“There is concern over the government’s plans for taxation and the possibility of more regulation of banks, and the uncertainty surrounding the Carbon Pollution Reduction Scheme, which will affect the decisions of boards to invest the capital which leads to M&A,” he said.

“There are some good [economic] signs and some good deals, but the consistency [of the business environment] is important. Business can handle one or two uncertain factors, but when you get several it becomes difficult to manage risk.” ALB

11

NEWS | analysis >>

news in brief >>

ANALYSIS >>

OUTLOOK BRIGHTENS FOR BANKING & FINANCE LAWYERS IN ASIA There are signs of a renewed market for banking & finance lawyers in Asia’s financial services sector – banks such as Citigroup, BoA Merrill Lynch and UBS are reportedly offering lucrative pay packets and bonuses to fill talent shortages following the financial crisis. A survey completed earlier this year by Norton Rose found that 64% of financial institutions expect that liquidity will return to the global banking system

by September. Norton Rose itself is building up its Tokyo and Beijing offices, currently offering up to eight banking and corporate positions.

ANOTHER ACQUISITION FOR LISTED LAWYERS SLATER & GORDON Listed firm Slater & Gordon has acquired Stewart & Noble Lawyers in Wangaratta, in a move which the firm said would consolidate its north-east Victorian presence. Stewart & Noble will operate under the Slater & Gordon branding.

The listed firm recorded 29% revenue growth last financial year, earning it a place in the ALB Fast 10 list of Australasia’s fastest growing firms. Slater & Gordon acquired six firms in FY2009, but managing director Andrew Grech has attributed half of the firm’s growth to organic business development.

FREEHILLS' PHILIPPA STONE GETS BOARD WITH SHOPPING Retailer David Jones has announced the appointment of Freehills’ corporate and commercial partner Philippa Stone as a non-executive director. Stone’s experience in business and legal matters adds a complementary skills base to the existing David Jones Board, said chairman Bob Savage.

Stone specialises in corporate governance, equity capital markets and M&A. She is also a member of the ASX’s Listing Appeals Tribunal, a member of the Law Council of Australia’s Corporations Committee and a member of the International Air Services Commission.

It is intended that Stone will stand for election as a director at the company’s annual general meeting on 3 December 2010.

12

Privatise or perish Privatisation might be the modern equivalent of selling the farm, but it is providing lawyers with a unique and challenging new line of work. ALB investigates

Q

ueensland Premier Anna Bligh’s dogged defence of a proposed A$3bn float of Queensland Rail’s coal and freight assets has been met with a frosty reception, from unions and the coal industry alike. However, unlike the privatisation angst of the 1990s, a certain sense of inevitability is permeating the air.

That same mood is manifesting itself in New South Wales, where a number of firms, including Gilbert + Tobin, have been ducking for cover following controversy relating to the recent sale of NSW Lotteries. But again, this is a controversy relating to form, not substance. As the political pendulum swings slowly back towards the Liberals and the ALP shores up its economic credentials, there is little room left for questioning whether or not privatisation should happen. The only controversy is over what model should be used.

In a slow economic environment, privatisation work has proved to be a mainstay for beleaguered national firms. Queensland Rail may be dominating the headlines, but it’s only

one of a series of recent public asset sales on which law firms have provided advice. Freehills’ partner Robert Nicholson noted that such work raises a wide range of potential advisor roles.

Nicholson himself acted mainly for governments in the privatisation of Victorian assets during the 1990s, but he said that there are also a number of buy-side and financing roles.

Indeed, some of the major firms such as Mallesons and Blake Dawson see their place in the market as firmly on the buyers’ or financiers’ side, as acting for governments often raises conflicts of interest with existing clients.

There is a unique nature to these transactions and there are unique skills which lawyers need to bring to the table. “It is a chance for M&A lawyers to broaden their horizons and be challenged in ways that they would not usually find,” said Nicholson. “Anyone working in this area has got to be able to bring skills in the regulatory area, as [privatisations] Robert Nicholson, Freehills often have a significant Australasian Legal Business ISSUE 8.4

NEWS | analysis >>

legislative and regulatory feel to them.

The final area that lawyers must have skills in is public policy.”

One of the main tasks for any law firm advising on the sale of a government asset is to provide advice on the amendment of the legislative and regulatory schemes regulating the activities of the assets. The regulatory aspect, combined with commercial consideration, is what makes government transactions so appealing to Gilbert+Tobin’s Bryan Pointon, who recently represented the NSW Government in the sale of NSW Lotteries.

Pointon was struck by the diversity of the matters the team advised on, such as the restructuring of statutory licence operations, drafting a Bryan Pointon, Gilbert+Tobin regulatory consultation paper and operating in conjunction with working groups to restructure the lotteries.

Gilbert+Tobin is also acting for the NSW Government in relation to the sale of its waste management business WSN Environmental Solutions, with legislation allowing this sale currently before both Houses of Parliament.

Queensland has also been very active in the privatisation stakes, with railways, ports, forestry plantations and motorways all on the block.

Simon Brown, a partner at Blake Dawson in Brisbane, sees these projects as recognition of the growth occurring in the state. “The Queensland Government doesn’t have the finance Simon Brown, or the capacity to develop Blake Dawson these things at the rate that industry requires,” he said.

The consequence is that there will be a shift in the way that facilities operate, and greater involvement from the private sector. Freehills’ Nicholson believes that the increasing cost of maintaining infrastructure – for example electricity poles and wires owned by governments ‘just to keep the lights on’ – is of concern to those governments across Australia still owning those assets. The need for increased funds to maintain and develop infrastructure is a significant push factor, and one that will lead to additional privatisations.

G+T’s Pointon noted that one of the benefits of the sale of NSW Lotteries was removal of the conflict of interest between the NSW Government’s ownership and regulatory roles in relation to that asset. He said that the NSW Government was likely to review more of the businesses activities it undertakes as part of a trend of separating out its ownership and regulatory roles. ALB

►► RECENT PRIVATISATIONS Jurisdiction

Matter

Firms

Status

NSW

NSW Lotteries sale to Tatts Group

Gilbert+Tobin (NSW Lotteries), in-house counsel represented Tatts Group

Completed

Pillar Administration (NSW superannuation administration business)

Gilbert+Tobin (Pillar Administration)

In progress

WSN Environmental Solutions sale

Clayton Utz (WSN Environmental Solutions)

In progress

Electricity assets privatisation

Baker & McKenzie, Freehills (NSW Government)

In progress

Victoria

Metropolitan Rail (Train and Tram) Franchising Project

Allens Arthur Robinson (Victoria Department of Transport) Blake Dawson (Keolis Downer EDI)

Completed

Queensland

Abbott Point Coal Terminal

Allens Arthur Robinson (Queensland Government)

In progress

Queensland Rail

Allens Arthur Robinson (Queensland Government)

In progress

Port of Brisbane

Minter Ellison (Queensland Government)

In progress

Queensland Motorways

Clayton Utz (Queensland Government)

In progress

Forestry Plantations Queensland

Freehills (Queensland Government)

In progress

www.legalbusinessonline.com

LEGAL TRAVELLER >>

Steven Jerrard Principal Macpherson+Kelley Lawyers, Melbourne

Favourite city to visit on business New York. It’s important when travelling long distances for business to get some R&R. New York City has it all for me – great museums, galleries and night life, especially the jazz clubs and great restaurants.

Best restaurant (and city) for business lunch Internationally, I like Le Gavroche in London. The Roux Brothers do it well and now their lunch special price (even for London) is good. The tables are spaced out to allow for confidential meetings.

Worst business travel experience Earlier this year I was in South-West China. Brilliant country but not so much if you are out and about and a stomach upset requires you to frequently find a toilet that is of usual western standard.

Least favourite destination Going nowhere! At M+K we have a significant international practice and travel is a vital element in maintaining it. I am never bored with travel.

Most exotic leisure destination ever visited So many places to choose from, but among my fondest memories are my travels, more than once, to Peru. I visited Machu Picchu twice and staying in the hotel at the top of the mountain, among the ruins, is romantic and beautiful.

Most dangerous travel experience I have been to lots of dangerous places by reputation, but have never had any problems.

However, I certainly recall a flight a few years ago, coming down into Venice in the middle of a violent electrical storm. I think a lot of people on board weren’t sure we would make it. When we landed, all the passengers burst into applause.

13

NEWS >>

news in brief >> SALVOS TO OPEN LAW FIRM The Salvation Army is planning to establish its own commercial law firm to fund humanitarian work.

Branches in Sydney, Brisbane and Canberra will advise on property and transactional matters, with profits to be used to fund a team of lawyers working on matters such as criminal law, refugee and migration advice.

CORRS LAWYERS RAISE FUNDS FOR CANCER COUNCIL Three lawyers from Corrs Chambers Westgarth have driven from Sydney to Alice Springs in an A$800 Ford Falcon, as part of a Cancer Council fundraising initiative. The rally travelled via Nyngan, Broken Hill, Copley and William Creek and raised nearly A$100,000, with 38 participants taking part in 17 teams.

INTEGRATED LEGAL HOLDINGS RAISES CAPITAL, FLAGS MORE ACQUISITIONS Listed law firm ILH has raised A$1.1m from existing and new investors in a recent capital raising.

Managing director Graeme Fowler said that the funds would be used for additional acquisitions and to provide general working capital. There will also be a share purchase plan for existing shareholders.

ILH grew revenues by 59% in FY2009 and Fowler said that the company’s annualised operating revenues were presently tracking at around A$21m, in comparison to A$16.95m in FY2009. ILH has a unique strategy of acquiring firms in the private client/ mid-market and SME space and continuing to operate those firms under their existing branding.

Fowler foreshadowed that up to 20 firms could join ILH in the next ten years.

ARBITRATION >>

Sydney vies for piece of international dispute resolution market

N

ews of a dedicated international dispute resolution centre to be established in Sydney later this year has Australian arbitrators alert to the enhanced prospect of sharing in a booming market for international commercial dispute resolution work.

The importance of this market has already been recognised by Hong Kong and Singapore, and although these cities are presently the leaders in international dispute resolution in the Asia-Pacific region, Federal AttorneyGeneral Robert McClelland is confident that Australia will be able to take its own share. “We enjoy very close ties to Asia and Europe, we have stable and robust economic, political and legal environments, and we boast some of the best legal practitioners in the world,” said McClelland.

The launch of the Australian International Disputes Centre will provide corporations with another option for resolving international disputes. “The fact is that international arbitration is emerging as the preferred choice for resolving commercial

disputes, particularly by Asian business,” said NSW Attorney-General John Hatzistergos. “The explosion in arbitration is largely due to the fact that international investors want to avoid the uncertainty of litigation in a foreign court system with the associated lack of familiarity over processes.”

Another key element to capture the international dispute resolution market is legislative reform. McClelland has said that ongoing reforms to arbitration laws, at both a state and federal level, will create an international bestpractice legal framework for arbitration in Australia. “These reforms provide the local framework for our highly skilled and internationally experienced Australian arbitrators to resolve disputes on Australian territory, under Australian arbitration law,” he said.

“Australia will be the place to come to when businesses want their problems fixed fast and fairly.”

The Australian International Disputes Centre will be fitted out at a cost of A$600,000, jointly funded by the Commonwealth and NSW

ADELAIDE >>

DLA Phillips Fox clarifies Adelaide structure

FEE BATTLE FOR CP&S PARTNERS FAILS The founding partners of Chang Pistilli & Simmons have been unsuccessful in a claim for approximately A$30,000 which was made against the partners’ former firm, Atanaskovic Hartnell. Mark Pistilli, Diana Chang and Danny Simmons had argued that they were entitled to the sum as it represented their share of fees earned by Atanaskovic Hartnell prior to their departure. Partner John Atanaskovic emphasised the strength of the defendant’s case and pointed out they won on all three issues in the litigation. Atanaskovic also said the defendants had on a number of occassions suggested settlement and also attempted to mediate the matter.

14

Australasian Legal Business ISSUE 8.4

NEWS >>

►► HOW MUCH IS THE MARKET FOR INTERNATIONAL DISPUTE RESOLUTION GROWING? • The Australian Centre for International Commercial Arbitration (ACICA) said 2009 figures reveal that the number of cases handled by major international arbitration centres has increased by between 50% to 150% over the past decade.

• ACICA notes the rapid growth is largely due to the GFC, which has seen an increase in commercial disputes. ACICA note that because international investors want to avoid the uncertainty of litigation in a foreign court system – excessive time and costs, the lack of familiarity with foreign court procedures, language barriers, a lack of confidentiality and a fear some countries may lack an impartial judiciary – arbitration has become the preferred dispute resolution mechanism.

• The Hong Kong International Arbitration Centre’s cases doubled to 602 during the period 2000- 2008. In Hong Kong, the overall legal services sector accounted for about 0.7% or US$1.3bn of GDP in 2007, according to the Census and Statistics Department.

• The Singapore International Arbitration Centre had a 71% rise in cases to 99 during the period 2000-2008. In Singapore, the overall legal services sector accounted for about 0.5% or US$902m of GDP in 2007 and 0.6% in 2008, according to Statistics Singapore.

Governments, the Australian Centre for International Commercial Arbitration and the Australian Commercial Disputes Centre. ALB

us report White & Case forced into lateral hires As departures at White & Case continue, the US firm has responded by making up five new partners.

London-based Jeremy Duffy has been named a partner in the global banking practice.

The firm also recently boosted the London financial restructuring & insolvency team with the hire of senior Skadden lawyer Christian Pilkington and relocated New York-based partner Jake Mincemoyer to London to assist with its local finance practice.

The move to bolster its global network follows a string of defections across the firm’s international offices since the beginning of the year, the most recent being the chair of the firm’s global IT practice group, Steve Betensky, who has since joined Latham & Watkins.

US firms fight salary battle in the UK The Magic Circle may be in danger of losing the UK’s top students to US firms after a survey highlighted the massive earning potential for junior lawyers in US firms in London. It identified US firm Bingham as a chart-topper, paying its newly qualified lawyers £100,000. Some US firms have recently reduced salaries (including Weil Gotshal & Manges), but Latham & Watkins and Debevoise & Plimpton now pay their UK NQs £96,000 and £94,250 respectively. These top-of-the-market

offers are in stark contrast to Magic Circle NQ salaries, which range from £59,000-£61,000.

Sharp to take charge at Dewey & LeBoeuf Dewey & LeBoeuf recently appointed litigation and restructuring specialist Peter Sharp as its first London managing partner since the 2007 merger of Dewey Ballantine and LeBoeuf Lamb Greene & MacRae. Sharp was formerly the London managing partner of LeBoeuf and will now also chair Dewey’s London policy committee – a nine-partner group the US firm launched last year to advise on strategy and oversee the UK office’s development as an international hub.

Splitsville for Hogan & Hartson in Europe The bulk of Hogan & Hartson’s Berlin office have set out to launch independent firm Raue in response to the firm’s merger with Lovells. The 18 Hogan & Hartson Raue partners identified potential conflicts as the driver behind the split and will create a new firm when the merger creates Hogan Lovells on 1 May. K&L Gates also recently took over Hogan & Hartson’s entire Warsaw office and is now set to launch in Poland with the newly acquired base of 38 lawyers – comprising six partners, five counsel and 27 associates. It marks the third international launch for the firm this year, following January openings in Tokyo and Moscow.

R

ecent reports of the Adelaide office of DLA Phillips Fox moving to an affiliate status have been confirmed by a firm spokesperson, who said that the move had occurred last September.

The office was previously financially integrated with the rest of the firm. The spokesperson said that the change was a minor structural one which would not result in any alteration to branding, clients or relationships.

Several other firms, including Minter Ellison and Gadens, similarly operate under a model of distinct partnerships for certain markets.

However, the DLA Phillips Fox move in Adelaide is likely to put a dampener on speculation that a full integration between that firm and DLA Piper is imminent. ALB www.legalbusinessonline.com

ROUNDUP

• Chadbourne & Parke recently poached a team of four disputes lawyers from Howrey’s London office including former international arbitration group head Melanie Willems • Hogan & Hartson and Lovells have established an 18 member committee to oversee the integration of the two firms. The implementation planning committee (IC) is co-chaired by the managing partner of Hogan’s Houston office, Thad Dameris, and the head of Lovells’ commercial and retail banking team, Emily Reed • A possibly self-serving recent research report commissioned by Eversheds has revealed that over half of all clients think that the Magic Circle designation is redundant, with 94% arguing that the profession should reclassify its peer groups • Howrey is set to cut up to 10% of its partnership following a review of its business carried out towards the end of last year. The review identified a 35% drop in profits per equity partner (PEP) during 2009 • DLA Piper is set to launch an office in Brazil, pending approval from the Brazilian authorities and following an alliance with local firm Campos Mello Pontes Vinci & Schiller. Campos Mello will remain an independent firm, but will work closely with DLA Piper, advising international companies on business in Brazil, as well as domestic companies looking to expand or do business in the country

15

NEWS >>

news in brief >> LAWYERS BREAK AWAY FROM ORRICK HONG KONG Hong Kong had its own minor Clutz/Allen & Overy moment last month when four litigation lawyers from Orrick’s Hong Kong office moved to Winston & Strawn, beefing up the latter’s commercial litigation practice. Partner Adrian Yip – who formed part of the 2005 launch team for Orrick in Hong Kong – took litigation associates Philip Kwok, Cliff Mok and Genevieve Ku along with him to Winston & Strawn.

MARKETING >>

Lawyers must learn the art of the pitch, says

W

hile the last 12 months have been tough for law firms, experts say that it is more important than ever for lawyers to learn the art of pitching for legal work. “The pressure to actually find work is still well and truly on, whether it is brand new work or making sure that lawyers are managing their existing relationships to ensure that they are fully optimising those to secure work,” said Trish Carroll, the founder of Galt Advisory and presenter at a recent Australian Legal Practice Management Association (ALPMA) seminar on pitching for legal work.

“Everybody has a fear, so oneon-one business development coaching has become normal” TRISH CARROLL, GALT ADVISORY NORTON ROSE TURNS SPOTLIGHT ON ASIA Norton Rose has made no secret of its desire to develop its chosen “headlight” practice areas in the Asia-Pacific and the region is getting a foretaste of what that might mean with the arrival of ex-London talent in the region. The firm has appointed former Linklaters counsel Anna Tipping as a partner in its Singapore insurance practice.

Tipping is currently at the firm’s London office and will be transferred to Singapore later in the year, joining two other partners in the insurance practice.

With the UK economy still struggling, it is likely that more talent will make the move to Australasia in the coming months.

Despite obvious benefits that flow from regularly pitching for work, some lawyers still find it difficult. “There are some lawyers that are fantastic at pitching for work,” said Carroll. “Then you’ve got other lawyers who hope that the fact that they do a good job ought to be enough. There is a level of embarrassment – they don’t want to feel like they are self-promoting.”

Carroll believes that law firms have a huge role to play in training their lawyers to develop this skill.

“Interestingly, given the GFC, firms are far more prepared to invest in giving their solicitors one-on-one business development coaching, rather than the classroom style of training” she said.

“This signifies that this is quite personal to people. Everybody has a fear, so one-on-one business development coaching has actually become more normal because it is

M&A >>

New appointees to Takeovers Panel announced

T

he Takeovers Panel has appointed ten new members to serve three-year terms.

Familiar names on the list include AAR’s Ewen Crouch, Mallesons’ James Dickson, David Friedlander and Piper Alderman Piper Alderman’s James Dickson. Members are appointed part-time and Dickson’s selection as member comes on top of his recent

appointment as the partner in charge of Piper Alderman’s corporate division nationally.

“I was pleased to be appointed to the Takeovers Panel to be part of, and contribute to, the body that is the primary forum for resolving disputes about takeover bids in Australia,” said Dickson. “Serving on the Takeovers Panel will allow me to bring a different perspective to takeover bids when advising my clients.” ALB

pic? ►► NEW MEMBERS OF TAKEOVERS PANEL

FREEHILLS SETTLES DISCRIMINATION CLAIM A dispute over alleged age discrimination between Freehills and a former Freehills lawyer has been settled. The matter had been due to be heard by the Victorian Civil and Administrative Tribunal in June.

The claim related to the alleged preferential treatment of younger lawyers over the claimant, including access to more sophisticated work.

16

Lawyers • Ewen Crouch, chairman of partners and co-head of M&A and capital markets at Allens Arthur Robinson • James Dickson, partner at Piper Alderman • Sarah Dulhunty, partner and board member at Blake Dawson • David Friedlander, M&A and securities partner at Mallesons Stephen Jaques • Rod Halstead, partner and national chair of M&A group at Clayton Utz • Jane Sheridan, partner at Arnold Bloch Leibler • Laurie Shervington, special counsel at Minter Ellison Non-lawyers • Peter Day, non-executive director of Ansell, SAI Global and chairman of Centro Retail Trust, Orbital Corporation • Nora Scheinkestel, director of AMP Limited and its wholly owned subsidiaries • Alison Watkins, CEO of the Bennelong Group Australasian Legal Business ISSUE 8.4

NEWS >>

ALPMA presenter

Warrick McLean, ALPMA national vice-president, Trish Carroll, Galt Advisory, Bronwyn Pott, ALPMA national president

more effective.” Individual partners also have a role to play in training junior solicitors. Carroll suggests that partners invite junior solicitors to meetings with clients and also take the time to brief and de-brief them. It may seem obvious but it doesn’t necessarily happen often, she said. ALB INDUSTRY >>

McCullough Robertson restructures to encourage entrepreneurship

uk report London salaries thaw Freshfields Bruckhaus Deringer recently became the first UK firm to lift its associate salary freeze for the next financial year. The Magic Circle firm reversed its salary bands in February last year, dropping newly qualified (NQ) salaries from £66,000 to £59,000, but decided to lift the freeze following a partnership committee meeting this February.

NQ pay will stay at £59,000 with a one-year PQE lawyer taking home £66,000 and May associates will now move through the salary bands as before, but will not make up the difference by skipping a band.

Freshfields also recently announced that Bertrand Pellet – who has been based in Paris for the past seven years – will succeed corporate partner David Higgins as head of the firm’s Middle East and North Africa (MENA) corporate practice.

Bonuses back for Addleshaw Goddard Associates and support staff at Addleshaw Goddard can again look forward to a bonus this year, after an effective freeze on non-partner bonuses last year. Associates and support staff currently receive bonuses on the basis of four criteria: financial targets, individual performance, productivity and “value” measures, inclusivity and the principle of “One Firm”. Last year no non-partner bonuses were paid because the profit trigger, set at 32% for 2008-09, was not reached.

This year, the bonus has a profit trigger of a 26% margin, but if this is not met then Addleshaws has

pledged to still reward “exceptional performance”.

The firm said the adjustment was to ‘recognise and reward individual contributions during a difficult time’.

UK firms move to merit-based pay Recent reports suggest several UK firms are reviewing the way they reward their associates.

Stephenson Harwood has become the latest firm to move away from the lockstep model for associate pay and take on a new merit-based system.

The firm’s new system, dubbed the ‘Associate Career Development Framework’, has been in development for a year and will be active as of the next round of appraisals in May. The scheme means that pay will be more closely linked to performance.

Eversheds recently announced that it would be overhauling its associate bonus structure to move towards a broader system that recognises team performance and client skills. Set to come into effect on 1 May in the UK offices to start with, the system will be a move away from the current model based purely on chargeable hours. Instead it will see fee-earners other than partners eligible to receive the bonus, based not only on chargeable hours but also individual performance and the financial performance of their own team within each practice group.

SJ Berwin has also put associate development at the centre of its strategy for the next financial year, with the firm rubber-stamping plans to recognise work undertaken outside of billable hours.

M

cCullough Robertson has streamlined its governance structure by appointing long-time litigation partner Guy Humble in the newly created role of managing partner. The restructure ensures that the firm maintains its culture of entrepreneurship and proprietorship, said chairman of partners Brett Heading.

As managing partner, Humble will work closely with the partners and encourage them to maintain a high level of performance. “[Humble] will assume direct partner management responsibilities, which will allow me to continue as chairman to concentrate on the firm’s strategic direction and spend more time on client interaction,” said Heading. Humble will also work closely with CEO David Goener, who will continue with day-to-day management of the firm. ALB www.legalbusinessonline.com

ROUNDUP

• Herbert Smith recently created the position of general counsel, with dispute resolution partner Martin Bakes stepping into the role. CFO John Mullins will take over from Norman Green as COO at the end of March • Linklaters may soon find itself embroiled in litigation from creditors of Lehman Brothers after it emerged a report into the bank’s demise found that Lehman had misused an advice letter written by the firm to keep up to US$50bn (£33.24bn) of debt off its US balance sheet, before its collapse in September 2008 • Clifford Chance has unveiled its slimmed-down partnership council, following efforts by managing partner David Childs to streamline management. The new council is down to seven members from the previous 12, and most members will serve for three-year terms • Simmons & Simmons is set to make the MBA a permanent option within its graduate recruitment process. The firm already has 25 of its future trainees signed up onto the MBA program with BPP this September • Carl-Peter Feick is set to take over from Michael Lappe on 1 May as Linklaters new senior partner in Germany • German law firm Noerr is set to open up an office in London at the end of 2010. The office, which will act as a base for advising international clients and will cover M&A, banking, restructuring, media, insurance and international litigation work, is expected to launch in the last quarter and will be staffed with five lawyers

17

NEWS >>

>>

IN-HOUSE Q&A

APPOINTMENTS ►► LATERAL HIRES Name

Practice areas

Organisation coming from

Organisation going to

Andrew Chalet

Entertainment, communications and media

DLA Phillips Fox

TressCox

Anthony Jefferies

Litigation and construction

Church & Grace

TressCox

Anthony Arrow

Projects

John Holland Group

Allens Arthur Robinson

Bianca Tree

Resource management

Cowper Campbell

Bell Gully

Damian Ward

Commercial litigation

HWL Ebsworth

Mills Oakley

David Williamson

M&A

Blake Dawson

BHP Billiton

Derek La Ferla

Corporate finance

Formerly retired

Norton Rose Australia

Gerard Breen

Insolvency & restructuring

DibbsBarker

Norton Rose Australia

Jodi Palmer

Litigation and dispute resolution

Gadens

Carter Newell

Joanne Daniels

Competition & regulatory

Clayton Utz

Middletons

In recent times, the role of the general counsel has diversified into a multi-faceted role (where the GC can wear the 'hat' of lawyer, legal manager, compliance manager, and company secretary). Do you believe this has increased your risk profile?

In an in-house role it is very easy to take on other roles and tasks within the organisation that are not traditionally legal roles. Those roles are often interesting, challenging and can add significant value to the organisation, but it is particularly important to remember the hat we must wear as a general counsel, and not blur that role in a way that either diminishes the effectiveness of the GC role or in any way compromises the role. As general manager, risk I have had a number of different inputs into our organisation, including input as the chair of our risk committee and member of our governance committee and senior executive team. I also held a role as an executive director of the SKM Group Board for six years. These additional roles certainly challenge me and have allowed me to develop different skills – which I hope have made me an even better general counsel

James Cooney

Corporate

Slaughter and May

Bell Gully

Jarrod Walker

Tax

Chapman Tripp

Bell Gully

Kemsley Brennan

Insurance

Chubb Specialty Claims, Asia-Pacific

Colin Biggers & Paisley

Ken Ramsay

Health and aged care

Formerly sole practitioner

Thomson Playford Cutlers

Luke Connolly

Employment

Clayton Utz

Mills Oakley

Michelle Sirasch

Property and resources

Sparke Helmore

McCullough Robertson

Petar Kuessner

Banking & finance Mallesons Stephen Jaques

Norton Rose Australia

Robert Milbourne

Energy & resources

Vale

Norton Rose Australia

3

Sophie East

Commercial litigation

White & Case

Bell Gully

integrity legal

Helen Gillies

corporate counsel Sinclair Knight Merz

1

Why have in-house lawyers become an increasingly indispensable part of an organisation?

In recent times, the global economy and its infrastructure requirements have experienced vast and rapid change and we know we will face more change in the next 10 years. In an in-house role, lawyers will deeply understand the business that they operate in and the challenges and issues that need to be addressed, holistically. This becomes crucial in terms of business outcomes as in-house lawyers can really add significant value in transactions due to their knowledge of the business drivers, and the stakeholder needs to be addressed. External lawyers clearly need to add additional value to this internal capability through the provision of specialist expertise, be it in particular areas of practice or jurisdiction.

We build virtual teams according to needs and what is required to get the deal through.

2

What do you consider to be the main challenges you and your team will face in 2010?

Sinclair Knight Merz is an engineering, sciences and project delivery firm operating across multiple jurisdictions and markets. We serve the mining and metals, water and environment, buildings and infrastructure, and power and energy sectors. We are seeing increasing opportunities across the globe, and projects themselves are becoming larger in scope and scale, more complex and urgent with increased accountability for delivery.

Our challenge as a legal team will be to continue to grow in capability to support the firm’s vision for the next decade and deliver outcomes in unfamiliar jurisdictions, across multiple time zones.

The key challenge is to ensure we continue to provide the business with robust legal advice as the firm continues to push its boundaries of geography and project complexity. The positive outcome of all of this is that our people and virtual teams will continue to grow with the firm.

18

►► PROMOTIONS Name

Practice areas

Organisation

Carolyn Hintz

Property and resource management

Bell Gully

Jenny Stevens

Commercial litigation

Bell Gully

Jillian Parkin

Dispute resolution & insolvency

Kemp Strang

Justine Hollows

Property

Bell Gully

Jefferson Wong

Corporate

Kemp Strang

Mathew McKay

Tax

Bell Gully

Sally Williams

Dispute resolution & insolvency

Kemp Strang

Pip Greenwood

Corporate

Russell McVeagh Australasian Legal Business ISSUE 8.4

NEWS >>

Mills Oakley

Various

Two new partners for Mills Oakley Mills Oakley has secured two new partners in the space of three weeks. Damian Ward joins the Sydney commercial litigation team from HWL Ebsworth, and exClayton Utz special counsel Luke Connolly joins Mills Oakley’s employment/workplace relations team in Melbourne.

Chief executive officer John Nerurker said that Mills Oakley had now entered a second phase of expansion which would see the firm expand to offer full-service capability in Sydney and Brisbane. He foreshadowed that the Sydney office would expand from its current seven partners to “between 12 to 18” partners over the next three years.

Blake Dawson

BHP Billiton

Blakes partner appointed chief legal counsel of BHP Billiton Blake Dawson partner David Williamson must have made an impression on client BHP Billiton because the mining giant has just announced his appointment as chief legal counsel.

Williamson has worked closely with BHP Billiton in the past, as the lead advisor on the company’s bid for Rio Tinto. He also advised on its US$100bn iron ore production joint venture with Rio Tinto.

During his time with Blake Dawson, Williamson held a number David Williamson of leadership positions, including practice leader of corporate, practice head for M&A, board member and client relationship partner for BHP Billiton. Williamson replaces Mike Ferraro, who joined BHP Billiton from Freehills.

Russell McVeagh

First female board chair at Russell McVeagh Pip Greenwood, a corporate partner and 2008 winner of the ALB New Zealand ‘Dealmaker of the Year’ award, has been voted in as the first female board chair of New Zealand firm Russell McVeagh. “I am privileged to have the support of the partners,” said Greenwood.

“This is a fantastic opportunity and it’s something that I am really looking forward to.”

As board chair, Greenwood will have primary responsibility for steering the strategic growth and direction of the firm rather than day-to-day management, which is left to CEO Gary McDiarmid.

Pip Greenwood “I don’t see myself making any radical changes in direction,” she said. “The reality is that we are doing very well in the marketplace and I will basically be improving certain aspects and making subtle changes.”

John Holland

AAR

John Holland GC joins Allens John Holland general counsel Anthony Arrow has joined Allens Arthur Robinson and will be based in the firm’s Melbourne office, effective from May. Arrow has been at John Holland since 2005 and has worked on the Victorian desalination plant, Peninsula Link and Ararat Prison public-private-partnerships.

UPDATE >>

Employment Law Bullying and Harassment in the Workplace: Significant damages for negligence

C

ourts have responded very decisively in recent cases involving bullying and harassment of employees.

Media reporting on such incidences have also sought to name and shame the specific company or individuals concerned.

Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] involved a negligence claim for psychological damage against an employer arising out of bullying and harassment. The bullying and harassment was carried out by a director of the company who was also her supervisor. The individual made repeated comments that the plaintiff’s job was “precarious”, placed pressure on her to resign from her union membership, and warned her not to be involved in any complaint against him. He also changed the plaintiff’s shifts without consultation, caused her mental and emotional distress by implying that she had stolen money, and underpaid her.

The plaintiff, along with other employees who had suffered the same treatment, contacted their union representatives.

The company placated the union by advising that the particular individual had resigned from the board. This was not the case and the bullying and harassment still continued unabated, even after the plaintiff took time off work for psychological conditions arising out of the workplace conduct. The plaintiff was ultimately assessed to have sustained such serious psychiatric injuries that she was unlikely to ever recover and return to work again. Levy DCJ awarded damages of a total of $507,550.

The legal and public relations fallout from a bullying and harassment incident could be catastrophic for a company.

Companies must ensure that their bullying and harassment policies are kept up to date and ensure that employee complaints are dealt with promptly and appropriately by senior management. This includes following up on remedial actions and taking enforcement measures if appropriate.

In many cases however, the affected employee may not actually lodge an actual complaint, either due to the workplace culture which discourages bullied employees from complaining or simply due to that individual’s personality. In those cases, it is the company that should take active steps to identify whether bullying exists or has the potential to exist. Indicia which may suggest that bullying exists in a workplace include persistent and unexplained sick leave by particular employees, injury reports, and a high staff turnover. Companies must take steps to investigate such indications early in order to be able to nip this unacceptable behaviour in the bud.

Matthew Smith, partner Sparke Helmore For further information, please contact matthew.smith@sparke.com.au

Anthony Arrow Matthew Smith

www.legalbusinessonline.com

19

NEWS >>

Sparke Helmore

New projects growth in 2010, says Newcastle recruit Queensland law firm McCullough Robertson is continuing its expansion in Newcastle. The firm has appointed former Sparke Helmore resources and property lawyer Michelle Sirasch to help meet growing client demand for property services, as part of their resources and infrastructure activities.

“Land access and acquisition continue to be key issues for project proponents, including resources companies,” said Sirasch.

“Major infrastructure projects, either in planning or in construction Michelle Sirasch delivery, have property-related issues which are crucial to their successful execution.”

TPC positions for growth in health and aged care sector Adelaide-headquartered Thomson Playford Cutlers has appointed consultant Ken Ramsay to the Sydney health and aged care group, as part of its plans to capture more of this growing market. Ramsay has 35 years experience in health and aged care and has advised clients in the public, private and not-for-profit sectors. He has played a key role at the coalface of health and aged care over a number of years, and across significant periods of change, said national corporate Ken Ramsay group partner Lucinda Smith.

The firm is focusing on this area to reflect the expected boom to occur in aged care facilities in Australia over the next 20 years.

Norton Rose

Various

New appointments reveal Norton Rose Australia’s strategy Four new partner appointments demonstrate Norton Rose Australia’s intention to align its strengths with those of the worldwide practice, said Don Boyd, managing partner at the firm. Norton Rose Group already has an international climate change practice and, along with Baker & McKenzie, is one of the few international law firms with a climate change team in China. “Globally, we are strong in financial institutions, energy, infrastructure & commodities, technology and transport,” he said. “Expect to see a lot more happening in this space soon.”

The new partners (see box, below) bolster the firm’s energy & resources practice and add new expertise to its banking & finance practice. In particular, Petar Kuessner has both securitisation and derivatives experience, and will provide the firm with a point of differentiation in the strategically important area of carbon trading, said Boyd.

Norton Rose Australia lured former partner Derek La Ferla out of retirement to rejoin the firm’s Perth office. “Western Australia has a significant strategic value to Norton Rose Group that extends beyond its booming resources industry,” said Boyd. “Perth itself has strong links with key markets in South-East Asia – and particularly Singapore.”

►► NEW PARTNERS AT NORTON ROSE AUSTRALIA

20

Thomson Playford Cutlers

McCullough Robertson

Name

Practice areas

Organisation coming from

Robert Milbourne

Energy & resources

Vale (mining co)

Petar Kuessner

Banking & finance

Mallesons Stephen Jaques

Gerard Breen

Insolvency & restructuring

DibbsBarker

Derek La Ferla

Corporate finance

(formerly retired)

Pacific Equity Partners

Link Share Registry

Skadden

Chubb

Colin Biggers & Paisley

Colin Biggers & Paisley lure in-house counsel Insurance industry executive Kemsley Brennan has moved back to private practice from Chubb, joining Colin Biggers & Paisley as special counsel. “The financial crisis has turned up the heat on companies and directors in terms of their liability exposures,” he said, adding that he is looking forward to working with a broader range of insurance companies and brokers.

During his time with Chubb, Brennan managed the defence of directors in high-profile Australian, US and Asian class Kemsley Brennan actions. Brennan also brings with him experience in the technical management of high-value claim litigation.

His addition to the firm represents a significant coup for CB&P, which is investing heavily in its insurance practice.

CORRECTIONS# In the ALB Special Report Perth 2010 featured in issue 8.3, a table appeared which listed the number of WAregistered lawyers per firm.

These figures were attributed to the Law Society of Western Australia. The correct source was in fact the Legal Practice Board of Western Australia.

ALB regrets the error

Australasian Legal Business ISSUE 8.4

NEWS >>

www.legalbusinessonline.com

21

ALB SPECIAL REPORT | Sydney 2010 >>

22

Australasian Legal Business ISSUE 8.4

ALB SPECIAL REPORT | Sydney 2010 >>

SYDNEY 2010

JEWEL IN THE CROWN

Sydney may have lost some of its lustre during the financial crisis, but law firms are confident that the Harbour City is set to regain its sparkle. ALB investigates

S

ydney law firms are a resourceful lot. As a major financial hub, it was inevitable that Sydney would be hit particularly hard by the global financial crisis. But in spite of some high-profile instances of corporate distress – or perhaps even because of it – Sydney firms have emerged from the crisis in reasonably good shape. “The firm had a subdued start to the first half of 2009/10 but September seemed to be the turning point,” says Danny Simmons of Chang, Pistilli & Simmons (CP&S).

“Our workflow steadily increased from there and we reached full capacity by November. We had our busiest December and January ever.”

It is well-known that the GFC has not followed the script for a typical economic downturn. While a long period of stagnation was expected, the reality has been that law firms barely had time to settle into a counter-cyclical routine before the ‘green-shoots’ reappeared. The result is that well-balanced Sydney firms are drawing work into all parts of their practice. “We’ve still got clean-up issues; restructuring and GFC problems which need to be resolved,” observes CP&S’s Mark Pistilli. “That’s coincided with the upswing – the downturn and the upswing collided.”

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Conditions may be improving, but New South Wales has been slow to shed the tag of the nation’s basket-case state. National firms such as Mallesons have seen business pick up in the first few months of 2010, but chief executive partner Robert Milliner says that the underlying commercial market in Sydney is lagging behind that of its interstate rivals. “NSW is still not doing a huge number of progressive things – while Victoria, for example, has done a whole range of things such as hospitals and water projects. It’s been said that even comparing the number of cranes you see in the Sydney and Melbourne skylines tells the story,” he says.

Yet the tide may be turning. Henry Davis York has grown its public sector practice by 40% over the past 18 months, a result which managing partner Sharon Cook says is partly attributable to increased infrastructure activity.

“Regardless of whether there is a change of [state] government, we will see much more investment in NSW,” she says.

Large national firms are cautious in their revenue predictions for FY2010, but a number of Sydney firms are expecting to report revenue growth – CP&S and Henry Davis York, for example, are both tracking towards double-digit growth

“We’ve still got clean-up issues, restructuring and GFC problems which need to be resolved.

That’s coincided with the upswing – the downturn and upswing collided” Mark Pistilli

Chang Pistill & Simmons

23

ALB SPECIAL REPORT | Sydney 2010 >>

for FY2010. Law firms have adopted a wide variety of strategies to achieve growth. Shane Barber of Truman Hoyle is convinced that his firm’s expansion during the GFC was attributable to its status as a tightly branded specialist firm. “There was a lot of regulatory work associated with NBN and other communications work – premium mobile services, competition law. Disputes and litigation was also up,” he says.

Gilbert + Tobin is tracking towards 5 to 10% growth this year, although it will be difficult to assess how much of this will be attributable to market conditions and how much will be attributable to an impressive lateral recruitment program, which includes Peter Cook from Mallesons and Nicholas Grambas from Baker & McKenzie in Melbourne. Managing partner Danny Gilbert says that while he is expecting to increase market share, the broader market for all of the firm’s offerings is looking positive. “All practice areas are strong except property, which is in recovery,” says Gilbert. “M&A is looking better and there is more interest in the private equity space.”

Southern stars

Sydney is home to several Melbourneheadquartered firms, which have made the pilgrimage north into the eye of the storm. And far from regretting the move, those firms are looking to expand their Sydney presence. Mills Oakley is in the process of what CEO John Nerurker refers to as a ‘second stage of expansion’, which will see the firm’s Sydney and Brisbane offices expanded to full service capability. It expects to see 15 to 20% growth this year in Sydney with construction, corporate advisory, litigation and insolvency practices among the stronger performing areas.

“It is not just counter-cyclical growth; our front end practices are also growing and we’re taking market share,” says Nerurker. Mills Oakley is well-known for its savvy use of lateral recruitment to attract quality partners and clients, and this strategy will be stepped up.

Nerurker says he would like to see the Sydney office expand from its current seven partners to “between 12 to 18” partners over the next three years.

Herbert Geer increased its Sydney headcount by about 20% last year – albeit off a small base – and is also expecting 24

revenue growth to occur in the Harbour City this financial year. “In Sydney we weren’t as exposed to the financial services [industry] so it didn’t really affect us as much,” says managing partner Bill Fazio. “Construction, disputes and industrial work were all strong, as was litigation such as the iiNet case. There’s a real slowdown in speculative property development – for example, speculative coastal development hasn’t come back.

Property is recovering, but not back to where it was – but it’s bubbling up rather than down.”

Perhaps the strongest growth of all has been seen from the young upstart of the Melbourne cohorts, M+K Lawyers.

As the most recent arrival in Sydney, M+K has the advantage of a small base from which to grow. Still, few would have expected the firm to expand from four lawyers to 20 and to record 68% revenue growth in Sydney in FY2010 – yet that is the kind of growth the firm is on track to deliver through organic growth and lateral hires.

Managing director Damian Paul foreshadows that M+K will make its first firm acquisition in Sydney later this year. Meanwhile, he says that business succession and estate planning, and tax and commodities contracts are among some of the firm’s betterperforming practice areas.

“In the last three to four months we’ve also seen capital raisings and M&A return,” he says. Paul estimates that M+K’s Damian Paul, front end/back end ratio M+K Lawyers is about 50% each way, which supports the theory that law firms focussing on the mid-market were not as badly affected by the GFC.

Infrastructure

NSW has a dubious history with infrastructure, with the failure of the A$5bn Sydney Metro being one of the more spectacular collapses to blot the state’s copybook. However, there are significant projects being mooted or are underway, such as the building of new coal loading facilities in the Port of Newcastle by a consortium led by BHP. CP&S was one of many firms which advised on that deal and also advised on a complicated suite of arrangements to govern the operation of the port.

The arrangements had to be negotiated Australasian Legal Business ISSUE 8.4

ALB SPECIAL REPORT | Sydney 2010 >>

between the government and multiple coal producers, train operators and track providers in the Hunter, and required Australian Competition and Consumer Commission (ACCC) consent. “The restructuring and underlying contracts involved a lot of work,” says Mark Pistilli.

He says that this is the type of work which will continue regardless of the political climate. “With resource prices being as high as they are, particularly for coal and iron ore, deposits in other areas are now becoming economic even where they are not close to train lines and ports.

So then you need infrastructure corridors to the ports and expanded capacity at port. And keep in mind that we don’t even have adequate port capacity for the mines which are currently operating.”

This work has the character of a fight over scarce resources and Pistilli says that he can’t see any end in sight for the foreseeable future. “The system is capacity-constrained all the way up the eastern seaboard and in WA – there is a desperate need for new infrastructure.

www.legalbusinessonline.com

To give you an idea of the economic imbalance, people are buying resource companies now as much for their rail and port capacity as for their reserves.”

Local and international

Truman Hoyle is an example of the flexibility of a typical Sydney firm, not afraid to take on less glamorous work to keep the wheels turning. “Clients are using us more often for day-to-day legal work – it’s almost as cost-effective as doing it themselves,” says managing partner Barber. “You can’t always do A-grade work. I used to work in-house and I know how frustrating it is when the best work goes to Shane Barber, law firms and the mundane Truman Hoyle work is left in-house – you can see the [in-house] frustration at getting swamped in minutiae. We’re happy to do things like tender responses and advertising approvals.”

Truman Hoyle is perhaps better

“It is the place which is seen to be dominant, it is also somewhat iconic and Asian investors are more likely to come here. We’ve seen a marked increase in this [trend] since last year” Sharon Cook

Henry Davis York

25

| Sydney2010 ALB ALBSPECIAL SPECIALREPORT REPORT| Sydney 2010>> >>

known for higher end work, a significant proportion of which is done for international clients. The firm is not limited to providing advice on Australian law, but also plays a “turnkey” role for overseas clients wanting information on the regulatory environment in other jurisdictions, such as New Zealand and Singapore. Truman Hoyle performs preliminary investigations and liaises with correspondent firms such as Colin Ng & Partners in Singapore or Hudson Gavin Martin in New Zealand and provides an integrated response.

It’s a model which demonstrates that Sydney law firms do not need to open new offices to serve international clients – a natural advantage enjoyed by Sydney firms. “Clients are not fussed that we’re not in multiple locations – but that said, it helps to be in Sydney,” says Barber.

“When people come to Australia, they naturally look to Sydney law firms. I think sometimes that Sydney firms underestimate themselves – there are a lot of good firms out there.”

26

There is a theory that in the postGFC era Sydney has consolidated its position as the financial services hub of the Asia-Pacific region. As the source of capital shifts from Europe to Asia, the new breed of investor, unfettered by having traditional ties with centres such as Melbourne, is said to be more likely to proceed directly to Sydney.

“It is the place which is seen to be dominant, it is also somewhat iconic and Asian investors are more likely to come here. We’ve seen a marked increase in this [trend] since last year,” says Cook. Henry Davis York has seen a tremendous opportunity in this trend and has invested heavily in its funds management practice for this reason.

Distress work

After the storm has passed the cleanup begins – and it has been largely Sydney lawyers who are wielding the broom.

Babcock & Brown, Allco, Macquarie and Challenger are just some of the institutions that have generated

Australasian Legal Business ISSUE 8.4

ALB SPECIAL REPORT | Sydney 2010 >>

restructuring or insolvency work in Sydney. However, HDY’s Cook doesn’t agree that insolvency and restructuring work necessarily has an inherent Sydney bias, pointing to Octaviar and ABC Learning as two examples of matters which had a strong Brisbane component.

“A lot of the work is done out of Sydney, but I think clients are attracted to the expertise rather than the location of a firm.”

Restructuring can take many forms, for example, negotiating Sharon Cook, with banks and selling off Henry Davis York assets and management rights and also fixing legacy issues for the buyers of those assets. CP&S, for example, has acted for Babcock & Brown on its disengagement from its power, infrastructure and real estate satellites. The firm has also acted for HNA Group on its acquisition of the Allco aviation business and is now advising on the legacy issues associated with the

www.legalbusinessonline.com

purchase of that business.

“Allco proved to be a difficult receivership because it was a highly financially structured business – it was difficult to work out what assets were actually saleable. It was difficult for the receivers as well as the buyers,” says Simmons. He also commented on how the legal work on distressed disposals has evolved. “When I first started out, distressed disposals were typically done by insolvency lawyers – there’s now a trend towards that work being done by corporate and M&A lawyers.”

It remains to be seen whether or not the present round of insolvencies and distress work will be capped off by extended litigation. Cook says that this kind of work has a long tail and there could conceivably be “at least a couple of years” left to run. Still, HDY is anxious not to put all of its eggs in the counter-cyclical basket, taking the uncharacteristic step of making lateral partner hires in the public sector, environmental planning and IP spaces. ALB

“When people come to Australia, they naturally look to Sydney law firms. I think sometimes that Sydney firms underestimate themselves – there are a lot of good firms out there” Shane Barber

Truman Hoyle

27

ALB Legal Careers Guide 2010

NB: In the salary tables appearing on the following pages, where recruiters give a salary range, ALB takes the midpoint of the range.

The ALB Market Average is therefore an average of averages.

LEGAL CAREERS GUIDE 2010

â–şâ–ş SNAPSHOT OF THE EMPLOYMENT MARKET

28

Jurisdiction

Overview

Practice areas in demand

Salaries

In-house market

Sydney

Mid-tiers have a number of roles on offer. Market for top-tiers started to lift at the end of November 2009 but top-tier firms are still being cautious. Law firms are looking for the two- to four-year PQE and senior associate levels

Litigation, insolvency, banking & finance, corporate & commercial, insurance

Top and mid-tier firms are undertaking salary reviews.

Some mid-tier firms are offering abovemarket rate salaries

Number of in-house roles available is increasing rapidly in the manufacturing and energy sectors. Other areas are relatively stable, with some corporates choosing to contain legal spend by adding roles with the specific purpose of reducing outsourced legal fees

Melbourne

Market for legal jobs has lifted but Victoria may be behind the other states in terms of aggressive recruitment activity

Employment, construction (front- and back-end work), litigation, M&A, equity capital markets, personal injury, insurance

While pay freezes have been lifted in a number of firms, the trend has been to raise them only tentatively at this point

Legal counsel and general counsel roles focusing on commercial contracting, risk and compliance are available

Brisbane

Market is getting busier. There are more junior and mid-level roles

Energy & resources, employment, litigation, insurance, construction (front- and back-end), small amount of banking & finance

Salary freezes have been lifted by most firms. Salaries are increasing but only slightly. Most firms are trying to come into line with firms that did not freeze salaries last year

In-house market is getting busier, with some opportunities for corporate counsel

Perth

Mid-size and large local WA firms have been hiring for the last six months but national firms have been slower to come back into the market. However, with the exception of Freehills and Blake Dawson, most are now recruiting actively. Some of the strong specialist boutiques have been busy in energy & resources and are attracting lawyers from the large firms or from interstate

Corporate & commercial, M&A, corporate, energy & resources, litigation and insolvency, employment, property, infrastructure, construction (front- and back-end)

Salaries in Perth are not that far behind Sydney and in some cases are higher

Market for in-house counsel has been relatively quiet across the energy & resources sector. A few more commercial roles are coming through from other industry sectors

New Zealand

Market is in recovery mode after a bad 2009, but more optimistic firms are getting back into the recruitment market

Corporate, property, litigation, as well as targeted recruitment in other areas

Limited upward movement in salaries during market recovery period

Large corporate teams want to hire lawyers in-house to minimise external spend, but government recruitment is restrained by headcount caps

Australasian Legal Business ISSUE 8.4

ALB Legal Careers Guide 2010

Lawyers – wanted?

www.legalbusinessonline.com

A$ 120

116

108 102

100

102

80 60

60

60

40 20

-tie r

e o us

to p NZ

ie r p-t

in - h

Me

lb o

NZ

us e

e to

- ho

r Me

lb o

ur n

e in

-tie to p

ey

Syd n

in - h

o us

e

0

ey

Burgess, director with Burgess Paluch Legal Recruitment. “Top-tier law firms have only recently returned to the market, essentially dipping their toes in to pick up lawyers in practice groups that have been less affected or to fill specific needs… While demand for lawyers has Paul Burgess increased and the market Burgess Paluch is improving, the recovery remains in its early stages.”

Yet given the uncertainty surrounding the timing of an economic recovery,

Syd n

L

ight is appearing at the end of the tunnel for Australian lawyers looking for career moves. Generally, more activity is being experienced as the number of job vacancies begins to increase.

“The [legal recruitment market] has definitely lifted,” said Kellie-Jane McLean, manager at legal recruiter GRLaw. “Nationally, and particularly in Asia, the employment market for lawyers has improved steadily following the Christmas hiatus and the downturn of the 2009 calendar year,” said Paul

►► AVERAGE SALARIES ACROSS 1-6YRS PQE

ur n

Australasian lawyers are hoping that reports of a recovering economy will breathe life into the legal recruitment market. Are lawyers back in demand? ALB investigates

29

ALB Legal Careers Guide 2010

“We’ve seen a bit of sunshine.

Everybody is quietly optimistic that things will improve – but I don’t think it’s completely back to normal yet” Bronwyn Pott

Swaab Attorneys

In-house salaries are higher than private-practice salaries for 3yrs PQE by

9.1%

30

it’s not surprising to learn that law firms are still exercising caution when hiring. “We’ve seen a bit of sunshine. Everybody is quietly optimistic that things will improve – but I don’t think it’s completely back to normal yet,” said Bronwyn Pott, the chief Bronwyn Pott executive officer at Swaab Swaab Attorneys Attorneys.

Any growth in the employment market will mirror the progress of a global recovery. “So long as financial markets improve and credit is more freely available then we expect demand for lawyers to increase,” said Burgess.

“Furthermore, as markets such as Asia improve, lawyers from Australia will recommence moving offshore, creating a further contraction in the pool of lawyers available.”

According to Burgess, the Australian market is driven by corporate

►► SYDNEY IN-HOUSE SALARIES (A$) Qualification

ALB Market Average

Recruitment company average

1 yr PQE

74,333

70,000

80,000

73,000

2 yrs PQE

91,833

85,000

102,500

88,000

3 yrs PQE

106,333

95,000

115,000

109,000

4 yrs PQE

124,167

105,000

132,500

135,000

5 yrs PQE

139,167

115,000

147,500

155,000

6 yrs PQE

165,833

140,000

177,500

180,000

Hays

Hudson

Mahlab

transactional work and overseas demand. “While it is likely that the former will increase in 2010, overseas demand – while improving – is a long way from having a significant impact.

Until markets such as London improve substantially and local talent there is exhausted, demand for Australian lawyers offshore will remain mild.

Accordingly, the market is unlikely to favour lawyers this year,” he said.

Others though are more optimistic

Australasian Legal Business ISSUE 8.4

ALB Legal Careers Guide 2010

about the revival of the employment market. Karen Waldock, a director at Hughes-Castell, predicts that, although there may possibly be another dip in demand, the market could become candidate-short as soon as mid-2010.

There has already been an increase in the number of corporate and commercial roles available, which is surprising given how badly this area was hit by the GFC. “Last year we saw some boutique firms

hire in [the corporate and commercial] area, but now many of the mid-sized and large law firms are either considering hiring again, or are at least casting the net out to see what’s out there,” said Doron Paluch, Doron Paluch a director at Burgess Paluch Legal Recruitment. Burgess Paluch Of course, there are

“Top-tier law firms have only recently returned to the market, essentially dipping their toes in to pick up lawyers in practice groups that have been less affected” Paul Burgess

Burgess Paulch Legal Recruitment

►► SYDNEY PRIVATE PRACTICE SALARIES (A$) - TOP TIER ONLY Qualification

ALB Market Average

Recruitment company average Hays

Hudson

Mahlab

HughesCastell

Michael Page

Taylor Root

1 yr PQE

74,200

82,000

77, 500

74,000

65,000

75,000

2 yrs PQE

82,917

90,000

92,500

77,000

68,000

77,500

92,500

3 yrs PQE

97,833

105,000

107,500

94,000

83,000

95,000

102,500

4 yrs PQE

114,167

120,000

115,000

110,000

95,000

117,500

127,500

5 yrs PQE

128,667

135,000

130,000

122,000

105,000

140,000

140,000

6 yrs PQE

150,833

150,000

150,000

135,000

115,000

190,000

165,000

www.legalbusinessonline.com

75,000

Sydney top-tier private-practice salaries at the 1yr PQE level have increased over the last year by only

A$367

31

ALB Legal Careers Guide 2010

“Last year we saw some boutique firms hire, but now many of the mid-sized and large law firms are considering hiring again, or casting the net out to see what’s out there” Dorun Paluch

Burgess Paluch Legal Recruitment

two approaches to recruitment in this market. Some law firms have adopted the wait-and-see approach while others are looking to be ahead of the game. “There are some proactive firms, definitely,” said Waldock. “Particularly if there is a good candidate, [law firms] want to move forward and put a case to senior management to hire them.”

Nevertheless, those lawyers who stayed put during the GFC have not yet experienced those difficulties finding employment in this market. “The market ►► MELBOURNE IN-HOUSE SALARIES (A$)

Melbourne salaries for in-house lawyers at the 4yr PQE level are lower than those in Sydney by

17.0%

32

Qualification

ALB Market Average

Recruitment company average

1 yr PQE

67,667

62,000

70,000

71,000

2 yrs PQE

79,500

74,500

80,000

84,000

Hays

Hudson

Mahlab

3 yrs PQE

95,500

96,000

92,500

98,000

4 yrs PQE

106,167

103,000

104,000

111,500

5 yrs PQE

120,000

113,500

112,000

134,500

6 yrs PQE

143,000

134,000

135,000

160,000

has picked up so much now they are still demanding about what they want,” said Waldock. “Firms are [also] being very particular with obtaining the exact fit for their openings.”

Karen Waldock Hughes-Castell

International lights

The Australian legal services market is beginning to change shape, and international players like Norton Rose and Allen & Overy are now part of the local scene. “I think it comes down to a fairly cheap and reasonable cost base to set up over here. What we’re seeing is a trend towards globalisation and Norton Rose is a good example of that,” said McLean. “I suspect we will see more local firms merging with international firms to [globalise].”

Whether the addition of large international firms in the Australian legal services market will make an impact on the work-flow of existing

Australasian Legal Business ISSUE 8.4

LegalREPORT Careers |Guide 2010 ALBALB SPECIAL India 09 >>

www.legalbusinessonline.com

33

ALB Legal Careers Guide 2010

“Areas like finance, tax and financial services remain flat, while others such as property, corporate and litigation have shown better growth” Jackie Gillies

Burgess Paluch Legal Recruitment

firms remains to be seen, but there’s no denying that their presence ruffles a few feathers. “Law firms, particularly top-tier law firms, who have been at the top of their game now have a new entity to compete with,” said GR Law’s McLean. “That will open up more opportunities Kellie-Jane McLean GR Law in the local market. At the end of the day it is an

awesome opportunity for lawyers to work with such a renowned firm.”

Australian firms now have to compete with international firms not only for legal work but also for available talent.

“People are looking more towards the benefits associated with a job, the style of work they’re doing and perhaps getting [choosier] and starting to look around,” said Swaab Attorneys’ Pott. Given the increase in competition, there is also the possibility that salaries may be pushed

►► MELBOURNE PRIVATE PRACTICE SALARIES (A$) - TOP TIER ONLY Melbourne private-practice top-tier salaries at the 4yr PQE level are lower than those in Sydney by

7.0%

34

Qualification

ALB Market Average

Recruitment company averages Hays

Hudson

Mahlab

HughesCastell

Taylor Root

1 yr PQE

71,700

80,000

76,000

66,000

65,000

71,500

2 yrs PQE

81,000

93,000

89,000

68,500

68,000

86,500

3 yrs PQE

93,500

103,000

103,500

84,000

79,000

98,000

4 yrs PQE

106,600

118,000

120,000

90,000

92,500

112,500

5 yrs PQE

120,900

136,000

130,000

111,000

95,000

132,500

6 yrs PQE

136,400

152,000

150,000

125,000

107,500

147,500

Australasian Legal Business ISSUE 8.4

Firm Profile ALB Legal Careers Guide 2010

Swaab Attorneys

We’re hiring...

L

aw firms aren’t all the same. If you’re thinking about the next step in your career, you want to make sure you choose a firm that can provide you with challenging work, opportunity to learn and a promising career path.

Being truly happy at work involves something beyond the professional elements. It’s equally important to find a firm that shares your outlook on the world.

At Swaab Attorneys, we believe that relationships are paramount, whether they

be with our clients, our suppliers or one another. Our core values are excellence, integrity, respect, unity, innovation and generosity of spirit. These are not empty words for us: they’re the fundamental principles by which we evaluate everyone in the firm.

Above all, we are determined to maintain a work environment in which we all respect one another. It’s because of this commitment to our common humanity that ours is a happy workplace.

But you don’t have to take our word for it. The proof is our firm’s consistent

nomination as an employer of choice and a great place to work.

We have practice teams in intellectual property, corporate, commercial, litigation, insolvency, employment, property, family law and private client services.

We’re hiring right now. So if you share our values, we’d love to hear from you.

For a confidential discussion, please contact HR Manager Gemma Johnston on (02) 9777 8393 or gmw@swaab.com.au or visit our website www.swaab.com.au

Bronwyn Pott, CEO and Gemma Johnston, People and Development Manager

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ALB Legal Careers Guide 2010

“There are plenty of middleof-the-range capable lawyers that [international firms] will not consider, which other midtiers will. It’s about marketing themselves in the right way ” Karen Waldock

Hughes-Castell

upwards slightly, as occurred when US law firms moved into the London market.

Opportunities available at large international firms certainly have the effect of drawing in candidates – but international firms will have their pick of the crop. “There are plenty of middle-of-the-range capable lawyers that [international firms] will not consider, which other mid-tiers will,” said HughesCastell’s Waldock. So those lawyers with experience at mid-tier firms looking to make the jump to an international firm may find it difficult, but it’s not impossible. “It’s about marketing themselves in the right way,” she said.

This means pushing forward the handson experience gained at a mid-tier firm – which may not be available to lawyers at top-tier firms. “They may not be working on those big transactions but they could be running a matter from end-to-end and really driving it,” said Waldock.

While it’s still early days and despite the positive outlook, firms are not yet hiring like they were before the financial crisis. Salary freezes are beginning to lift but the trend has been to raise salaries only tentatively, at this point.

“Areas like finance, tax and financial services remain flat, while others such as property, corporate Jackie Gillies and litigation have shown better growth,” said Jackie Burgess Paluch Gillies, a consultant at Burgess Paluch.

Nevertheless, even in this market law firms are doing their best to hold on to top legal talent. “I think firms will bear in mind the current discontent among lawyers for the salary freezes over the last 12 to 18 months and try and prevent star performers from leaving,” said Waldock. ALB

Firm Profile

wotton + kearney

Boutique insurance law firm Wotton + Kearney opened in Sydney eight years ago with six lawyers. We now operate with more than 50 lawyers throughout Sydney and Melbourne.

I

n 2009 we were awarded the Australasian Legal Business Specialist Insurance Law Firm of the Year. We are pleased to announce we are a finalist again in 2010.

Our lawyers are of the highest quality; they work for the best clients; and they are involved in the largest and most complex matters in the insurance marketplace.

Looking for a graduate position with one of Australia’s leading law firms?

At Wotton + Kearney our graduate program is tailored to suit the needs of graduates through flexible work practices with a focus on expanding individual skill sets beyond the ‘technical’ skills.

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Fundamental to the practice of all our lawyers is the development of their ‘practical’ skills such as presentation and plain English writing skills. We ensure these skills are nurtured by participation in our in house seminars, our mentoring programme, by attending external CLE events and by having client contact from solicitor to partner level.

By rotating graduates across several distinct areas of practice within the ‘insurance’ law field, we present a challenging work environment for our graduates yet ensure career interests are met by allowing graduates the choice of specialisation at the end of the rotation.

At Wotton + Kearney we offer graduates the chance of being part of a leading team

of lawyers with substantial career prospects in a firm thriving on continued growth.

Talented and motivated graduates looking to commence their career with Wotton + Kearney should contact Jessica Booth, Human Resources Manager at jess.booth@wottonkearney.com.au or by phone on 02 8273 9900.

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ALB Legal Careers Guide 2010

NZ legal job market snapshot: cautious optimism

►► NEW ZEALAND PRIVATE-PRACTICE SALARIES (NZ$) Qualification

ALB Market Average

1 yr PQE

46,667

2 yrs PQE

58,778

3 yrs PQE

70,000

Recruitment company averages Hays

Dolman

HughesCastell

48,000

48,000

44,000

62,000

62,000

52,333

74,000

74,000

62,000

4 yrs PQE

85,889

90,000

90,000

77,667

5 yrs PQE

98,444

105,000

105,000

85,333

6 yrs PQE

106,667

110,000

110,000

100,000

►► NEW ZEALAND IN-HOUSE SALARIES (NZ$) Qualification

ALB Market Average

Recruitment company averages Hays

HughesCastell

1 yr PQE

52,500

55,000

50,000

2 yrs PQE

62,000

70,000

54,000

3 yrs PQE

71,834

82,000

61,667

4 yrs PQE

85,084

97,500

72,667

5 yrs PQE

94,000

110,000

78,000

6 yrs PQE

101,167

120,000

82,333

A

fter a 2009 that was widely considered to be an exceptionally difficult period for the job market (unemployment was at a real high), 2010 thus far is perhaps best described as a year of restrained market recovery.

While some firms are still content to remain bunkered down, advising that they will revisit the issue of recruitment midway through the year, others are demonstrating ever-increasing optimism as they make targeted lateral hires and post more vacancies.

“The legal job market in New Zealand is positive overall and we see that continuing throughout 2010. Demand for lawyers is definitely picking up, particularly for us in the corporate and property areas at a senior level. In saying that, we continue to be on the lookout to recruit star candidates in a number of

other areas, including litigation,” said Penny Miller-Stewart, human resources director at Bell Gully.

Economic indicators also point to a stronger second half of 2010, during which it is likely most firms will start resuming their normal hiring practices.

According to Paula Watts, director of Law Staff International, both firms and large corporate teams want to add lawyers – in the case of the latter, in order to minimise external legal fees where possible.

Legal recruitment within the public sector, however, still appears very subdued as the government remains focused on maintaining a cap on headcounts. However, a number of short-term contract requirements are emerging from the public sector, as in-house legal teams seek to manage heavy workloads within the fixed-headcount environment. ALB

“Demand for lawyers is definitely picking up, particularly for us in the corporate and property areas at a senior level”

Penny Miller-Stewart

Bell Gully

Want a better job? Get tech-savvy! ►► TECH HELP Manpower’s expert talent consulting firm Right Management recently developed a career management tool to help with the interviewing process. The technology is called iView, and is a web-based interview practice program, designed to build communication skills.

Using a webcam, individuals record a simulated interview or presentation, then immediately play back the recording to see and hear their response.

A key advantage is that iView allows candidates to practice privately before receiving external feedback and coaching.

“People feel uncomfortable singing their own praises, whether it’s in a job interview or a performance review. Using iView is a way to desensitise them to the experience and help them hone the way they present to employers or managers,” said Tim Roche, regional practice leader, career management at Right Management.

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A

few weeks ago, US firm Morrison & Foerster announced it would be launching an iPhone application – MoFo2Go – for clients, in a move that is perhaps the clearest manifestation yet that technology and the legal services industry are now inseparable. The clear message to all lawyers out there, especially those looking towards the next rung on the career ladder, is to understand technology – or risk falling behind.

“In the current technology era that we live in, being tech-savvy is an advantage to any candidate,” said Chrys Leong, a legal consultant with Hudson Singapore.

“Jobseekers who are currently not very tech-friendly should sharpen their skills, because it is the minimum expectation of any prospective employer.” Lawyers should also improve their proficiency,

familiarity and comfort levels with all the relevant software and hardware, and use information technology to their advantage.

“Technology is speed, speed is time and time is money. In this day and age, working nine to five is long gone, and 24 hours a day is barely enough as some lawyers are expected to support Asia, London and US markets all in the same day,” said Leong. “Lawyers are expected to be contactable 24/7 no matter where they are located in the world. Tech-savvy lawyers know how to leverage technology to their advantage, rather than be a slave to it.”

Even the actual search mechanism for legal jobs has now moved onto a mobile phone platform: the leading ALB Legal Jobs Centre job search engine is now accessible via a free, fully confidential iPhone application. ALB Australasian Legal Business ISSUE 8.4

ALB Legal Careers Guide 2010

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Firm Profile ALB Legal Careers Guide 2010

Buddle Findlay

NZ COMMENTARY

A review of mining in New Zealand’s protected areas

S

ince coming into power in late 2008, New Zealand’s National-led government has undertaken a range of significant reviews and reforms of resource management law. This includes major reforms to the Resource Management Act 1991 (RMA) in late 2009 and 10 current policy work streams on resource management issues. So far in 2010 the government has announced its intention to remove members of the Canterbury Regional Council by way of urgent legislation, and proposals to review the ownership of the foreshore and seabed by repealing the Foreshore and Seabed Act 2004.

One of the government’s most controversial initiatives has been a review of the potential for mining protected areas in NZ. A significant proportion of New Zealand’s land area is Crown-owned, with approximately 40% of the country being public conservation land administered by the Department of Conservation. This land includes, for example, national parks, reserves, ecological areas and conservation parks.

There are significant areas of that public conservation land that are effectively closed to mining activities.

The government is undertaking a review of the extent of prohibitions on mining in public conservation land. In March 2010 the government released a discussion paper, “Maximising our mineral potential: stocktake of schedule 4 of the Crown Minerals Act and beyond” (Stocktake) which set out proposals to remove mining protections from certain public conservation land.

This discussion paper is open for public comment until 4 May 2010.

The Stocktake concludes that NZ is a mineral-rich country. However, 40% of that wealth is concentrated in public conservation land that is protected from mining activity under Schedule 4 of the Crown Minerals Act 1991. The government proposal is to remove certain areas of public conservation land with significant mining potential from Schedule 4. The Stocktake states that

40

the proposal is to develop only a small proportion of that Schedule 4 land. The government recognises that “removing any land from Schedule 4 will be highly contentious” and that any development needs to be targeted.

Schedule 4 Schedule 4 was added to the Crown Minerals Act in 1997 and covers national parks and certain other public conservation land. The effect of land being listed in Schedule 4 is that only very limited mining activities may be authorised on that land (such as minimum impact activities or drilling for petroleum or gas from outside of those areas). Consequently, the removal of land from that Schedule will open up the potential for more significant mining activities.

Other safeguards The Stocktake points out that there are a range of other safeguards beyond listing land in Schedule 4. For example, mining on public conservation land that is not listed in Schedule 4 would still require a range of statutory authorisations. These include consent to access that land (from the Minister of Conservation for public conservation land), relevant mineral permits, concessions (from the Minister of Conservation for non-mining activities such as roads), and resource consents under the RMA. The Stocktake asserts that environmental, cultural, resource allocation and public interests can be adequately accounted for through these other statutory processes.

Proposals The government is proposing the removal of certain areas of public conservation land from Schedule 4 now, and the investigation of other areas for future removal from that Schedule. The areas proposed for removal amount to just over 7,000 hectares of public conservation land. This includes 700 hectares on Great Barrier Island, 2,500 hectares on the Coromandel Peninsula and over 3,000 hectares from Paparoa National Park (west coast of the South Island).

There are 12 further areas proposed for investigation, including additional areas on the Coromandel Peninsula and in Paparoa National Park, as well as parts of Rakiura National Park (Stewart Island). There are also proposals to add a number of areas to Schedule 4, including recent additions to national parks, reserves and marine reserves.

The government also intends to amend the approval processes for access to public conservation land for mining. Currently this decision rests with the Minister of Conservation, and the proposal is to make that a joint decision with the Minister of Energy and Resources to provide more of an economic perspective in decisions on access to public conservation land. The government is also focusing on improving the efficiency of statutory processes for mining access arrangements and concessions on public conservation land.

Finally, the Stocktake proposes the establishment of a contestable fund for conservation purposes which is based on future royalties received from mining on public conservation land.

Comment There is a long history of controversy over the mining of public conservation land in New Zealand, particularly on the Coromandel Peninsula and on the west coast of the South Island. This will be a highly contentious and political issue for the government this year, with environmental groups and communities already mobilising to fight the proposals. Even if areas are removed from Schedule 4, there is significant potential for litigation over the granting of other statutory authorisations such as resource consents under the RMA and concessions under the conservation legislation.

The challenge for the government is to further its agenda of growing the NZ economy by unlocking potential mineral wealth, without suffering too much political damage from opening public conservation land to mining. There is certainly no sign of this government shying away from difficult resource management issues.

Paul Beverley is a partner in Buddle Findlay’s Wellington office and specialises in resource management, conservation and Maori law. Paul was formerly a senior lawyer in the Department of Conservation and advises widely on public conservation land issues.

Paul Beverley, Buddle Findlay

Paul can be contacted by phone: +64 4 462 0406 or email: paul.beverley@buddlefindlay.com

Australasian AustralasianLegal LegalBusiness BusinessISSUE ISSUE8.4 8.4

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ALB Legal Careers Guide 2010

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PROFILE | managing partner >>

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Australasian Legal Business ISSUE 8.4

PROFILE | managing partner >>

ALB 2010 MANAGING PARTNER SERIES

Campbell Fisher, FCB Workplace Lawyers:

The industrious type Campbell Fisher, managing partner of multidisciplinary firm FCB Workplace Lawyers, speaks with Renu Prasad about the future direction of employment law practices

L

ast April, the floodgates suddenly opened for FCB. “We received six invitations from large companies – ASX200 and bigger – to tender for their panels and we were successful in all of those bids,” says managing partner Campbell Fisher. “These were companies for whom we’d never worked before. In the absence of the financial crisis, I’m not sure we would have received those invitations.”

This experience will resonate with many boutique and mid-size firms, but perhaps it is particularly germane to the employment law space. The increased segmentation of panels and growing client pressure for enhanced value has created the right conditions for well-run specialist firms to flourish.

Could employment law be the next practice area to be squeezed out of the top tier?

“You’re seeing lot of pressure on top-tier employment practices because hourly rate structures are lower than in areas such as M&A, banking and finance,” observes Fisher. “Margin contribution is always going to be under pressure. That said, the mid-tiers are

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certainly seeing workplace relations as a practice area that is attractive to them, and with their margin structure it is easier for them to integrate it than it is for the top tier. It’s a really good niche boutique practice area – but you need to be good at it, as with anything else.”

relations practice that doesn’t have any predatory commercial instincts. It would be a good fit for us because we don’t [advise in] any area that they do.

I was thinking of giving them a call once the dust had settled.”

Ironically, FCB itself delegates business to affiliated firms. When work

“We’ve gone back to a more traditional industrial environment with more tribunal focus, and that’s seen an upsurge in tribunal litigation, particularly around bargaining processes” The matter could receive fresh impetus from the arrival in Australia of international firm Allen & Overy, which has eschewed the full-service model in favour of building referral relationships with specialist firms. FCB hasn’t received the call yet, but Fisher says that he would value the opportunity to pursue such a relationship. “In their transactions, they could readily do with support from a professional workplace

Campbell Fisher

FCB Workplace Lawyers

arises outside the firm’s home states of NSW and Victoria, FCB is able to make use of relationships with Adelaidebased Norman Waterhouse Lawyers, Brisbane-based Milner Lawyers and Perth-based Lavan Legal. While Fisher would like to see FCB eventually develop a national presence, he says that the key challenge will be finding quality people.

Still, it may happen sooner than 43

PROFILE | managing partner >>

“A lot of our time is spent helping organisations move from adversarial models to collaborative models – supporting the organisation in the deployment of sophisticated processes so that they have the best chance of success” Campbell Fisher

FCB Workplace Lawyers

44

anticipated – FCB currently receives an average of four unsolicited applications a week from lawyers of all different levels of seniority. “People are queuing up to get a start here,” says Fisher.

Changing laws

Employment relations was one of the key battlegrounds of the 2007 Federal election and it is no surprise that lawyers are still busy advising on the battery of legislative changes which has accompanied the first two years of the Rudd government. Fisher says that the two key changes he has seen have been the rise of tribunal litigation and award harmonisation.

“We’ve gone back to a more traditional industrial environment with more tribunal focus and that’s seen an upsurge in tribunal litigation, particularly around bargaining processes,” he says. “We’ve also seen close to 3,000 awards rationalised down to about 300 and a general move to create a consistent set of minimum standards of employment nationally.

“We’re in the middle of the transition process and it’s leading to a lot of compliance work as businesses adjust to the new minimum standards. We might come in and do an audit on their existing structure to see whether there are any gaps between their existing structures and the new structures and how they might move to close those gaps. Those are large projects, particularly for the big organisations.”

There are large penalties for employers who do not comply with the new laws – and FCB also undertakes prosecution work for the Fair Work Ombudsman, a creation of the Howard government which has been retained by the current government. Fisher is also expecting the planned harmonisation of OH&S laws to create significant workflows for employment lawyers.

All of this suggests that FCB’s practice is in a robust state, but the real proof is in the revenue and resourcing statistics. In the past 12 months, FCB has added six new professional staff – three lawyers and three consultants – and is currently on track to record 20% revenue growth in 2010. “You don’t need to win too many big clients to gain significant growth,” says Fisher.

FCB Workplace Lawyers has also embraced the move towards alternative billing arrangements. “We have done a range of fixed-price arrangements around litigation and major outsourced project work – there’s no reason why the profession can’t go down that path,” says the managing partner.

“We’ll certainly give people a rebate for a certain spend and if people want to go into a fixed-price deal over a number of years we’ll look at an even higher discount, because that gives us certainty in relation to revenue base and cash flow.”

An interdisciplinary practice

FCB Group was established in 1993 as a workplace relations consultancy and later branched out into law. It remains one of the few multidisciplinary firms to survive that era, continuing to prosper as more ambitious relationships between law firms and accountants faltered. FCB’s multidisciplinary strategy is to provide not only legal advice but also software and consultancy services that put in place protocols and pro forma documentation to assist clients to recruit, manage and terminate staff, in line with industry best-practice.

Fisher says that part of the firm’s success has been that workplace relations will lend itself to a multidisciplinary model to a greater degree than many other practice areas. “A multi-disciplinary approach means that you can get further into an organisation at the earlier stages and prevent the negative aspects of legal solutions more often,” he says.

Fisher cites enterprise bargaining as an example. “[Enterprise bargaining] legislation is adversarial because the legal system in Australia is adversarial, but there aren’t too many workplaces where adversarial relationships between management and employees will promote the most successful contribution to a business by employees,” he says. “So a lot of our time is spent helping organisations move from adversarial models to collaborative models – supporting the organisation in the deployment of sophisticated processes so that they have the best chance of success.” ALB

Australasian Legal Business ISSUE 8.4

EVENTS | Australasian Law Awards >>

AUSTRALASIAN 2010

►► LEADING FINALISTS Firm

46

No.

Law firm awards CSR, Managing Partner

Freehills

23

Mallesons Stephen Jaques

21

Allens Arthur Robinson

18

Blake Dawson

11

Enhancement of the NSW Legal Profession

Clayton Utz

11

Managing Partner

Corrs Chambers Westgarth

11

Sidley Austin Baker & McKenzie

9

Minter Ellison

8

Sullivan & Cromwell Russell McVeagh

8

Gilbert + Tobin

6

8

Corporate Citizen, CSR, Innovative Use of Technology Award

International Law Firm CSR, International Law Firm

Henry Davis York

4

McCullough Robertson

4

Bell Gully

3

International Law Firm Corporate Citizen, Managing Partnerr Corporate Citizen, Enhancement of the NSW Legal, Profession, Managing Partnerr, Sydney Law Firm Managing Partner, Sydney Law Firm Brisbane Law Firm, Corporate Citizen Managing Partner

Chang Pistilli & Simmons Cooper Grace Ward

3

Sydney Law Firm

3

Hall & Wilcox

3

Brisbane Law Firm, Employment Specialist Firm, Insurance Specialist Firm Employment Specialist Firm, Insurance Specialist Firm, Melbourne Law Firm

Simpson Grierson Skadden Arps Slate Meagher & Flom

3

6

3

International Law Firm

Deal awards M&A, Energy & Resources, Debt Market, Equity Market, Insolvency & Restructuring, Project Finance, Australian Dealmaker, Australian Deal Team Insolvency & Restructuring, Equity Market, Energy & Resources, M&A, Project Finance, Debt Market, Australian Deal Team Debt Market, Insolvency & Restructuring, Energy & Resources, M&A, Project Finance, Equity Market, Australian Dealmaker, Australian Deal Team Insolvency & Restructuring, Equity Market, Energy & Resources, M&A, Project Finance, Australian Dealmaker, Australian Deal Team Insolvency & Restructuring, Equity Market, M&A, Energy & Resources, Project Finance, Australian Dealmaker, Australian Deal Team Insolvency & Restructuring, Energy & Resources, M&A, Project Finance, Debt Market, Australian Deal Team Equity Market, Debt Market, M&A Energy & Resources, M&A, Equity Market, Project Finance, Insolvency & Restructuring Insolvency & Restructuring, Debt Market, M&A, Energy & Resources, Project Finance Equity Market, M&A, Project Finance New Zealand Dealmaker, New Zealand Deal Team, Insolvency & Restructuring, M&A Insolvency & Restructuring

Insolvency & Restructuring M&A, Energy & Resources New Zealand Dealmaker, New Zealand Deal Team Debt Market, Insolvency & Restructuring

Insolvency & Restructuring, M&A, New Zealand Deal Team Debt Market, Equity Market

T

his, the eighth consecutive year that the ALB Australasian Law Awards have been held, has perhaps been the most challenging for the 500 or so senior lawyers and in-house counsel that will gather together at the Westin Sydney on 13 May. But amid the layoffs, salary freezes and general tales of woe lie glittering jewels of legal work on the transactional front that are the equal of those from any year past. A glance at the finalists for any of the Deal of the Year awards reveals many transactions that are not only larger than one would expect from generally subdued markets but also packed with ►► ASSESSMENT OF DEALS Short-listed transactions must have reached financial close during the calendar year of 2009 to be eligible for consideration. While many transactions will involve multiple legal jurisdictions, each deal will be allocated to a specific ALB event – governed by where the majority of the legal work was completed.

The ALB editorial and management team defined four criteria for judging the overall excellence of any given deal.

These are as follows: • Size – the financial value of the deal and the quantity of legal work involved • Complexity – the degree to which advanced legal and financial techniques and structures have been applied to the deal • Breadth – the degree to which the deal spanned jurisdictions, practice areas, parties and industries • Innovation – the degree to which the deal involved groundbreaking, original legal techniques and structures

innovative features, complex in their structures and notable for the number of jurisdictions and practice areas that they involve.

So what has been an unremarkable year in terms of general economic performance has nevertheless been a remarkable one for the legal profession.

And while the mega-deals are largely the domain of the top-tier powerhouses, this year’s spread of finalists, all of whom should be congratulated, also evidences the continuing strengthening of many mid-tier and state-based firms.

All the finalists in categories such as Employment Firm and IP Specialist Firm present their own strong cases for taking home the trophy. ALB ►► THE ALB LAW AWARDS SERIES – GLOBAL RECOGNITION FOR ASIA’S LEGAL EXCELLENCE ALB China Law Awards SHANGHAI 16 April 2010 ALB Australasian Law Awards SYDNEY 13 May 2010 ALB Japan Law Awards TOKYO 28 May 2010 ALB SE Asia Law Awards SINGAPORE 4 June 2010 ALB Hong Kong Law Awards HONG KONG 10 September 2010

www.albawards.com

BOOK YOUR TABLE NOW! In order to be there at the fabulous Westin Hotel in Sydney on 13 May, book a table for the Macquarie Bank ALB Australasian Law Awards 2010 online at www.albawards.com or contact Stephanie Sudzina.

Phone: +61 2 8437 4727, fax: +61 2 8437 4599, e-mail: stephanie.sudzina@keymedia.com.au Australasian Legal Business ISSUE 8.4

EVENTS | Australasian Law Awards >>

THE FINALISTS

ALB is delighted to reveal the official list of finalists for the 2010 Australasian Law Awards, which will be held at the Westin Hotel in Sydney on 13 May.

IN-HOUSE CATEGORIES BANKING & FINANCIAL SERVICES IN-HOUSE TEAM OF THE YEAR

INSURANCE IN-HOUSE TEAM OF THE YEAR

INVESTMENT BANK IN-HOUSE TEAM OF THE YEAR

FINALISTS

FINALISTS

FINALISTS

►► ANZ BANKING GROUP Why: • Under the leadership of general counsel Deborah Marris, the ANZ legal team has supported the bank’s progress towards a dominant regional presence • A highlight was the US$550mn acquisition and integration of the RBS retail, wealth and commercial businesses in Taiwan, Singapore, Indonesia and Hong Kong, and its institutional businesses in Taiwan, the Philippines and Vietnam

►► CHARTIS Why: • Has handled a rebranding and a year of complex, high end litigation with “real class” and demonstrated a deep understanding of the issues arising • Described as “very professional in dealings with external advisors” and an ability to stay on top of issues when workflow becomes hectic

►► UBS Why: • Winner of this award last year, the UBS team has continued to attract favourable market comment because of its depth and continuing commitment to quality commercial advice. UBS has been involved in the lion’s share of landmark transactions in 2009, raising A$42bn on the equity capital markets and conducting 18 issues each individually worth over A$500m • UBS advised on as many as eight of this year’s finalist deals

►► RABOBANK Why: • Rabobank team has been favourably noted for its collegiate environment, which engenders support and development for individual team members and the group as a whole • Breadth and depth of the team’s legal expertise is also well regarded and in particular the team’s ability to balance the legal obligations of Rabobank with the bank’s commercial objectives and to do this with regard to the integrity of the client/bank relationship ►► KIWIBANK Why: • The Kiwibank legal team, under the leadership of Tim Bennett, is credited with making a substantial contribution towards the success of Kiwibank since its inception in 2002 • Particularly notable has been the challenge of growth during the GFC in the context of a complex and highly regulated banking environment ►► ING DIRECT Why: • Has been commended as providing thoughtful and sophisticated support to all functions within the business • Aligned to company business objectives and effectively partners with external providers and internal clients to deliver great outcomes with “responsiveness and ability to problem solve which is second to none”

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►► IAG Why: • IAG team won this category in 2009 and continues to be the subject of favourable market comment • Team has continued to forge ahead with major matters including the transfer of A$550m contingent hybrid capital onto IAG’s balance sheet and advising IAG’s joint venture in India on its “greenfield” IT tendering and implementation process ►► LIBERTY INTERNATIONAL – PROFESSIONAL INDEMNITY CLAIMS TEAM Why: • Described as “highly impressive” in terms of technical ability and capacity to undertake some matters internally • Has received praise stemming from handling of relationships with external advisors and ability to brief counsel in appropriate manner ►► QBE INSURANCE Why: • QBE’s legal department has been focused on national acquisition opportunities with the purchase of Elders Insurance and expressed interest in the purchase of the ING commercial insurance arm • Overseas, it has also been busy with the acquisition of ZC Sterling, SLG Benefits and Insurance in the USA and Carlife Group, a motor gap insurance agency based in the Czech Republic

►► DEUTSCHE BANK Why: • Team is perceived by the market as a strong, well-balanced unit with “sound judgment and experience” and capacity to deliver top commercial advice. Advisors who have worked with the team have been impressed with its capacity to frame advice in a manner which is commercial rather than simply technical • Highlights of the year included advising on the Kirin-Lion Nathan acquisition and Santos’ capital raising ►► JPMORGAN Why: • Despite going through a transitional period with some team members changing roles, the JPMorgan team has continued to impress with its capacity to provide fast, commercial advice which shows an excellent understanding of the risk profile of the business. This is another example of an in-house team which has distinguished itself with sound judgment and a savvy use of external advisers • This year advised on five finalist deals, including capital raisings

by Santos and Rio Tinto, and the SW Queensland Pipeline Stage 3 project financing ►► CITIGROUP Why: • Advised on a host of market-leading transactions, including the Noble - Gloucester Coal and Yanzhou Coal - Felix Resources acquisition as well as major debt (BHP Billiton senior notes offering) and equity (Santos capital raising) deals.

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AUSTRALASIAN 2010

EVENTS | Australasian Law Awards >> AUSTRALASIAN 2010

NEW ZEALAND IN-HOUSE TEAM OF THE YEAR FINALISTS ►► ANZ NATIONAL BANK Why: • One of New Zealand’s largest and most comprehensive inhouse teams, this group provides legal advice on a strong mix of internal and external work, requiring extensive specialist skill sets which are highly demanding • Team has been praised for its “outstanding” liaison between the ANZ National Bank business and its external legal providers. Highly efficient and effective decision making also ensures the team continually operates at the highest level, maintaining an excellent capacity for work ►► IAG NEW ZEALAND Why: • IAG team is highly esteemed because of the diversity of stakeholders and complexity of issues which it is called upon to advise • Recent highlights include a significant contribution to shaping regulatory reform facing the insurance sector through active engagement with regulators and government and the strategic management of litigated claims and the management of a uniquely structured external panel that delivers cost savings and value-add services for the business

►► KIWIBANK Why: • Legal team, under the leadership of Tim Bennett, is credited with making a substantial contribution towards the success of Kiwibank since its inception in 2002 • Particularly notable has been the challenge of growth during the GFC in the context of a complex and highly regulated banking environment

AUSTRALIAN IN-HOUSE TEAM OF THE YEAR To be announced at the Awards

IN-HOUSE LAWYER OF THE YEAR FINALISTS ►► CHARLES SPILLANE, AUCKLAND INTERNATIONAL AIRPORT Why: • Spillane has been involved in a string of impressive transactions of late, which include two retail listed bond issues which raised NZ$180m, a NZ$150m facility agreement with the Bank of Tokyo-Mitsubishi, the commencement of new trans-Tasman and domestic air services from Jetstar, acquisition of a 25% shareholding of North Queensland Airports, owner of the airports at Cairns and Mackay and

a successful associated equity raising in New Zealand of NZ$126m ►► DEBORAH MARRIS, GC, ANZ BANK Why: • Has built a cohesive Asia Pacific, Europe and America legal team of more than 30 professionals located across Asia Pacific, London and Mumbai. The geographic spread of the team, and Marris’ emphasis on recruiting for both relevant expertise and Asian experience, has supported ANZ to substantially progress its business strategy • Marris and her team took pivotal role in supporting the bank in strengthening its Asia platform, in particular through the US$550 million acquisition, and integration, of the Royal Bank of Scotland’s retail, wealth and commercial businesses in Taiwan, Singapore, Indonesia and Hong Kong, and its institutional businesses in Taiwan, the Philippines and Vietnam ►► SAUL CANNON, ASCIANO Why: • Led Asciano’s successful A$2.45bn equity raising announced in June 2009. The outcome resulted in a significant reduction to the group’s leverage and a substantial improvement to the balance sheet, returning Asciano to the ASX top 50 group of companies • Demonstrated exceptional leadership and management skills both during the transaction and more generally during Asciano’s strategic decision making processes. Has also been noted as a high achiever by other industry associations

FIRM CATEGORIES EMPLOYMENT SPECIALIST FIRM OF THE YEAR FINALISTS ►► AUSTRALIAN BUSINESS LAWYERS Why: • Has strong client base featuring many ASX200 and multinational companies • Acted for one of Australia’s largest construction companies in its defence of several landmark OHS prosecutions; advised on its OH&S compliance strategies, including those that need to be developed for 2012 compliance with ‘harmonised” OH&S laws • Acted for NSW Business Chamber in 67 of 102 proceedings before the AIRC, in addition to acting directly for American Express in making submissions to the full bench ►► COOPER GRACE WARD Why: • Workplace relations team doubled in size during 2009 • Serviced a mix of existing and new clients who have been attracted to the firm, including Boral, Atlas Metals, Queensland Institute of Medical Research, Veolia, Linddales, JM Kelly, Teachers Union Health, Royal National Association, Queensland Racing and Wickham Freight Lines ►► FCB WORK PLACE LAWYERS Why: • Won several prestigious clients/ panel appointments in 2009 including ANZ Bank, the Fair Work Ombudsman, Star City and Asciano • 20% increase in professional staff in 2009 • Highly recommended by clients and was ranked as ‘leading’ employment specialist firm in ALB Employment Law Guide 2009

►► HALL & WILCOX Why: • Firm’s employment practice area experienced 29% growth in revenue and 33% growth in staff for FY2009. Group is on track to have grown a further 50% in revenue this financial year • Recent addition of a highly experienced OH&S practice, combined with the existing migration services, completes a full-service offering in this area ►► HARMERS Why: • Recognised as leader in this field with strong base of clients and deep experience in sophisticated matters • Has been praised by firms who have referred employment matters to Harmers • Contributes a significant percentage of its profits back into the pursuit of justice and equality in Australia and overseas through a variety of channels

►► SPARKE HELMORE Why: • Has one of the largest workplace relations and safety teams in Australia, spread across eight offices. Clients include some of Australia’s biggest companies across a wide range of industries including mining and resources, FMCG, Government, construction, transport, and manufacturing • Active member of key industry groups such as the Minerals Council of Australia and the NSW Minerals Council and is affiliated with the National Safety Council of Australia, the Safety Institute of Australia, the Australian Steel Institute, and the Risk Management Institute of Australasia

INSURANCE FIRM OF THE YEAR FINALISTS ►► COLIN BIGGERS & PAISLEY

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Why: • Invested significantly in the future of its insurance practice by luring new recruit Linda Murphy from a senior in-house counsel role • CB&P is a recent winner in this category (2008) and continues to be well regarded by the market ►► COOPER GRACE WARD Why: • Strong client base comprises some of Australia’s leading insurers • During 2009, added a range of new clients including ACE Insurance, CommInsure and Lexon Insurance. The team expanded from 16 team members in 2008 to 27 team members as at the end of 2009 ►► DLA PHILLIPS FOX Why: • Well-respected practice • Team also advised one of Australia’s largest insurers on the launch of a significant new online car insurance product which allows consumers to obtain a quote within 60 seconds ►► HALL & WILCOX Why: • Growth in revenue in this practice area for FY2009 was 18% while growth in revenue for the financial year to date January 2010 was 53% • Has rated extremely well in client satisfaction surveys ►► LANDER & ROGERS Why: • Currently involved in leading litigation in Australia and New Zealand, including class actions, major property disputes, multiparty professional indemnity actions, and D&O claims • Group expanded substantially in 2009, taking on an additional 11 lawyers

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►► MORAY & AGNEW Why: • Well-respected name in insurance field • Strong fee earner (20%) and revenue (11%) growth last year ►► TURKS LEGAL Why: • 22% revenue growth in this area last year • Has commenced documenting one of the largest insurance transactions in Australia, worth over A$600m in premiums over three years • Has embraced the use of new technologies and client interfaces which enhance effective management and communication ►► WOTTON + KEARNEY Why: • Won this category last year. Had a superb 2009, recording 37% organic growth and being named as the fastest organically growing firm in Australia in the ALB Fast 10 survey • Highlights in 2009 included being appointed to join three new insurer panels - Allianz Global Risks, Dual and Liberty International – and being the only specialist insurance firm appointed to the prestigious Westpac panel. Number of fee earners increased by nearly 30%

IP SPECIALIST FIRM OF YEAR FINALISTS ►► DAVIES COLLISON CAVE Why: • One of Australia’s largest IP specialist firms; winner of this award in 2009 • Well regarded by market and has several representatives on industry bodies relating to IP and technology issues ►► FB RICE & CO Why: • Highly respected name in the patents and trademarks space • Partners have strong reputation in their specialist fields which is recognised globally ►► GRIFFITH HACK Why: • Has impressive list of blue chip clients and advised on a number of high profile matters • Known for an ambitious national expansion strategy and has recently added six new IP lawyers to the team • Comprehensive depth of service offering ►► SLATERS INTELLECTUAL PROPERTY LAWYERS Why: • Principal Anny Slater won the 2009-2011 (biannual) NSW Woman Lawyer of the Year • Firm is active mentor in the NSW Law Society’s “shadowing” program for indigenous students and Women in Film and TV’s annual mentoring programs ►► TRUMAN HOYLE Why: • Reputation for innovation and advice on cutting edge aspects of technology and law • New marquee clients for 2009 include Microsoft, Vodafone and KMPG • Industry “thought leadership” on key emerging issues

CORPORATE CITIZEN FIRM OF THE YEAR FINALISTS ►► DLA PHILLIPS FOX Why: • Committed and currently on track to deliver about A$7m in free pro bono work this year • In the past 12 months, over 80% of partners and staff have contributed more than 27,000 hours to community

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►► GILBERT + TOBIN Why: • Won this category last year • In the last financial year G+T provided over 13,000 hours of pro bono work, an average of well over 60 hours per lawyer.

Value of that work is conservatively estimated at A$4.8m ►► MALLESONS STEPHEN JAQUES Why: • Firm-wide program facilitates an annual A$5m contribution to the community by the firm and its staff through pro bono legal work, volunteering and charitable giving • Through the program, more than 631 staff volunteer to help Mallesons charity partners in an array of initiatives, which last year included assistance to Victorian bushfire relief programmes and promotion of fair-trade products • Rated Gold Employer of Choice in 2010 ALB Employer of Choice survey ►► LANDER & ROGERS Why: • During 2009, provided over A$1.1m worth of assistance, an impressive result given the size of the firm (159 lawyers) • Strong commitment to environmentally sustainable policies and practices in the office ►► MCCULLOUGH ROBERTSON Why: • Has signed onto the National Pro Bono Aspirational Target of 35 pro bono hours per lawyer, per year, to increase commitment to pro bono legal work • Organisations assisted include Hear and Say Centre, Amnesty International Australia, Cystic Fibrosis Queensland, Alzheimer’s Associations of Queensland and also a commitment to assisting “start-up” community organisations ►► RUSSELL MCVEAGH Why: • A landmark pro bono project by this firm is the Visitor Centre Project for the Karori Wildlife Sanctuary, a not-for-profit organisation dedicated to urban ecological restoration with a 500-year vision to restore native flora, fauna and wildlife to the New Zealand mainland. The project is the biggest project of its kind in Wellington in ten years • Has provided pro bono legal advice to a range of other organisations from charities including Curekids and the SPCA to sports organisations such as Auckland Cricket and Wellington Hockey • Rated Gold Employer of Choice (NZ) in the 2010 ALB Employer of Choice survey ►► LAVAN LEGAL Why: • Donated more than A$130,000 to the community • Supported over 23 charities, participated in seven major community events, and gave a Toyota van to Salvation Army for Christmas 2009 • Assisted with over 1,000 claims from members of the WA Stolen Generation, and is developing a fund to help finance education for indigenous students

CSR FIRM OF THE YEAR FINALISTS ►► BAKER & MCKENZIE Why: • Has consistently been a leading advisor in climate change and environmental markets for more than a decade • Solid track record in advising on policy development and research, education and training and emissions reduction strategies which the firm has also adopted for its own operations ►► FREEHILLS Why: • Has developed strong expertise in identifying operational

structures to help clients fulfil their own cultural values and needs – for example using employment structures that give Indigenous employees greater flexibility to participate in traditional customary activities • Has expertise in identifying and managing the legal and commercial issues associated with the development of renewable energy resources such as wind farms and hydroelectric power stations ►► MALLESONS STEPHEN JAQUES Why: • Another firm which has been pro-active in identifying issues and opportunities which the proposed ETS and alternative measures will present for clients • Last year, 50 lawyers from the Mallesons Human Rights Law Group (HRLG) prepared a comprehensive submission to the Federal Government’s National Human Rights Consultation.

Community and workplace engagement remains a key part of firm culture

INNOVATIVE USE OF TECHNOLOGY FINALISTS ►► HOLLEY NETHERCOTE COMMERCIAL LAWYERS Why: • Creative use of technology, including blogs and social media, to enhance engagement with clients • Strong web presence and online strategy aimed at providing targeted, rather than generic, advice and information ►► MALLESONS STEPHEN JAQUES Why: • Shows strong leadership in constant improvement of technology offering for clients • MallesonsConnect web tool allows clients to check on availability of Mallesons’ team members, review the progress of projects, analyse financial status of a project (including all paid/unpaid invoices), track fee estimate compliance, give instant feedback and access project-related correspondence and documents ►► NORTON ROSE Why: • Introduced new electronic filing system which brings together all matter related content relevant for legal professionals to manage their client files, allowing lawyers to work in any office, at home or on-site • System aggregates content from the traditional legal applications including Aderant Expert, WorkSite, and InterAction as well as web-based services like Google Maps. Telephony services are also fully integrated and are closely coupled with instant messaging and presence ►► FCB WORKPLACE LAWYERS Why: • FCB Technology arm was innovative web-based technology to support industrial relations legal compliance • Developed unique platform to deliver a best-practice workplace relations system to Australian Retailers Association; achieved 1,000 registered users within the first two months

ENHANCEMENT OF THE NSW LEGAL PROFESSION FINALISTS ►► BLAKE DAWSON Why: • Uses professional ethics as the fundamental context for various professional development programs at all levels up to and including partner • Formal mentoring programs enable graduates to accelerate their learning and development by sharing experiences in a career- oriented and supportive environment; women lawyers are encouraged to reach full potential through individual and group mentoring

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• Full and part time secondments to Intellectual Disability Rights Service, Lou’s Place and the Sexual Assault Communications Privilege Project in Sydney alone ►► GILBERT + TOBIN Why: • Runs Ethics Focus sessions with discussion groups on topics such as “how to align personal ethics with the ethics of the profession” • Principal sponsor of the Gilbert + Tobin Centre of Public Law at the University of NSW, an independent organisation that plays a prominent role in stimulating debate on issues vital to Australia’s future • Regular pro bono support to many different community legal services around the country ►► UNIVERSITY OF NEWCASTLE LEGAL CENTRE Why: • Focuses on providing quality legal services, based on ethical practice, to members of the community who would not otherwise be able to afford them, and undertakes legal matters which are in the public interest • Has long history of running significant public interest community legal cases, the most recent of which include acting for the family of Cornelia Rau in the Palmer Inquiry, and acting for six indigenous clients in the Administrative Decisions Tribunal on a discrimination claim • Supervised by Legal Centre solicitors, a number of students at the Legal Centre prepared a submission to the National Human Rights Consultation on the proposed Australian Bill of Rights

INTERNATIONAL FIRM OF THE YEAR FINALISTS ►► BAKER & MCKENZIE Why: • In 2009, acted as international counsel on A$11bn of equity offerings by Australian companies including Amcor, Asciano, AWB, Bank of Queensland, Bendigo and Adelaide Bank, Boart Longyear, ConnectEast, Kathmandu, Spotless and Woodside • Also acted as US Counsel on A$3.3bn of equity placements for companies including Fletcher Building, Macarthur Coal, PanAust, Qantas and Sims Metal Management ►► SIDLEY AUSTIN Why: • In 2009, Sidley Austin advised on A$33bn and NZ$687m of equity offerings by Australian and New Zealand issuers respectively, consisting of cross-border IPOs and “dual track” IPO/trade sales, including the Myer IPO and the United Malt IPO/ trade sale • Also acted as US counsel to the issuer or underwriters on over US$76bn of debt transactions by Australian issuers. This included acting for Macquarie Bank and the agents on the US MTN programs of ANZ, CBA, Suncorp and Westpac ►► SKADDEN ARPS SLATE MEAGHER & FLOM Why: • In 2009 advised on 19 cross-border equity capital raisings, collectively worth over A$15bn, including Westfield, Stockland and Goodman • Advised the Australian Government in relation to the Guarantee Scheme, demonstrating a high level of innovation in this task; • Also advised on major restructurings, including Centro and CIT Group ►► SULLIVAN & CROMWELL Why: • Well-respected ECM and DCM practices • In FY2009, advised onUS$25bn in equity offerings by Australian issuers during BlueScope Steel (A$1.4 bn), Fairfax Media (A$625m), Incitec Pivot (A$1.17bn) and Woodside Petroleum (A$1.7bn) • Acted for Queensland Treasury Corporation and New South Wales Treasury Corporation on their SEC-registered US debt financings

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ADELAIDE FIRM OF THE YEAR FINALISTS ►► FINLAYSONS Why: • Continues to gain traction with major clients and is now on three of the four “big bank” panels • Highly regarded by clients and cross-referral firms • Recorded 8% revenue growth last financial year ►► KELLY & CO Why: • A South Australian firm which has continued to build a solid reputation outside its home state, performing work for clients such as Westpac, CBA, Santos, Elders, AVL (McGuigan Simeon) and Clipsal • Recent matters include Elders’ disposal of its majority interest in ASX listed Amcom Telecommunications and ABB/Viterra A$1.2bn debt-syndication • Maintained headcount during the GFC in order to build for future ►► LYNCH MEYER Why: • Recognised leader in niche areas such as construction, property and aged care with strong representative client base in those areas • Well regarded client listening program has delivered further growth opportunities to the firm • Streamlining of mentoring program to encourage collegiate culture

BRISBANE FIRM OF THE YEAR FINALISTS ►► CARTER NEWELL Why: • Recorded solid growth last year in difficult environment • Acted for Santos Limited in negotiating and completing the acquisition of Magellan Petroleum’s interest in the Nockatunga Joint Venture in South-West Queensland. Documentation was completed within six weeks • Strong collegiate environment ►► COOPER GRACE WARD Why: • Significantly increased market footprint with merger with well regarded firm Bain Gasteen, creating a merged firm of more than 210 people • Has also upgraded premises to new five “green star” building • 2010 Employer of Choice for knowledge management and IT ►► HOPGOOD GANIM Why: • Gold ALB Employer of Choice, signifying top employment brand across Australia in the mid-size firm category • Last year secured work from a range of new, high-profile clients, including Aldi Stores, Coles Group, Visionstream/Nextgen Networks (NBN related work) • Advised on a number high-profile deals during 2009, including Bow Energy’s A$77m share placement and purchase plan and Norton Gold Fields’ A$40.5m share placement ►► McCULLOUGH ROBERTSON Why: • Queensland’s largest law firm with strong market reputation • Opening of Newcastle office in late 2009 demonstrated firm’s strength during difficult economic circumstances and office has since grown to six people • Advised on some major deals including the Narrabri Coal joint venture and the takeover of Gloucester Coal by Noble Limited, which are just part of a strong and active resources practice

• Celebrated 125th anniversary in 2009 and has excellent coverage of the Queensland market with offices in Brisbane, Cairns and Townsville • Demonstrated particular innovation in the government practice area in response to the amalgamation of local council and also in introducing foreign investors to the marketplace by offering local knowledge and contacts

PERTH FIRM OF THE YEAR FINALISTS ►► BLAKISTON & CRABB Why: • Strong reputation as a boutique energy and resources firm in the Western Australian market • Acts for over 100 publicly listed Australian and international companies involved in resource exploration, development and operations • Strong knowledge and relationships with local firms in overseas jurisdictions ►► JACKSON MCDONALD Why: • Acted on some extremely high profile, high value transactions and landmark litigation in 2009, including the representation of Andrew Forrest in proceedings with ASIC • Particular focus on retention of female lawyers and improvement of maternity and parental leave provisions • Increased headcount by 5% in 2009 ►► LAVAN LEGAL Why: • Maintained double-digit revenue growth during GFC without an increase or decrease in professional staff numbers • Only local firm to be appointed to the new Woodside panel and also appointed to the National Australia Bank,Westpac and HSBC panels • Donated over A$130,000 to charities

MELBOURNE FIRM OF THE YEAR FINALISTS ►► CLARENDON LAWYERS Why: • Young firm has made a favourable impression with the market, attracting positive comment and referrals, often at the top tier level • Last year Clarendon Lawyers facilitated transactions to the value of A$330m and was involved in highly complex litigation and insolvency matters. The firm also advised a number of high net wealth family groups on restructures involving cross-border operations ►► HALL & WILCOX Why: • Made the ALB Fast 10 list of Australia’s fastest growing firms yet again last year, having recorded 14% revenue growth in FY2009 • Appointed as one of five law firms to the Federal Government’s Tax Design Advisory Panel and a range of legal panels including AWB Limited, Department of the Treasury, Westpac and other ASX-listed companies • Strong market reputation and focus on collegiate firm culture ►► HERBERT GEER Why: • The fastest growing law firm (with traditional law firm structure) in Australia (ALB Fast 10 survey 2009) • Managing partner Bill Fazio has pursued an active and ambitious East Coast growth strategy, taking the firm from 24 to 53 partners between 2008 and 2009 • While narrowly missed out on place in 2010 Employer of Choice survey, was highly rated by market

►► MACDONNELLS LAWYERS Why:

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AUSTRALASIAN 2010

►► MILLS OAKLEY Why: • Firm made the ALB Fast 10 list for the third consecutive year in 2009 – its sixth year of double digit growth, much of which was achieved organically • Last year won appointments to several highly-coveted ASX200 legal panels, including Telstra, Suncorp and GPT • Has embraced alternative billing strategies and service guarantees as well as offering clients far greater certainty on their legal costs

SYDNEY FIRM OF THE YEAR FINALISTS ►► CHANG, PISTILLI & SIMMONS Why: • Has a very distinctive boutique model primarily engaged in high profile work for clients in the top tier space • Recent matters include the A$6bn Wandoan JV; the A$3bn Babcock & Brown refinancing; the Manchester Unity merger with HCF and delisting proposal of Everest Babcock & Brown ►► GILBERT + TOBIN Why: • Has continued to service its top tier client base and has made some shrewd lateral recruitments, including most recently Peter Cook of Mallesons • Brought on six new partners in 2009, increasing partnership size by 6% ►► HENRY DAVIS YORK Why: • Very strong brand which has come to the fore with the recent emphasis on litigation and insolvency work • Involved in some very high profile insolvencies including ABC Learning Centres, TimberCorp and Octaviar ►► TRUMAN HOYLE Why: • Grew staff numbers and revenue by 20% in 2009 • Widely regarded as a leader in the IP/ telecommunications/ media space and has won several new blue chip clients of late ►► COLIN BIGGERS & PAISLEY Why: • Only Australian law firm that can litigate and arbitrate in the United Arab Emirates, Colin Biggers & Paisley played a pivotal role in assisting clients ride the construction boom in Dubai and more recently assisting clients to establish themselves in Abu Dhabi which is fast becoming the cultural capital of the Middle East • Invested in improved client service delivery strategies during the GFC

MANAGING PARTNER OF THE YEAR FINALISTS ►► DANNY GILBERT, GILBERT + TOBIN Why: • Winner of this category in 2008 • Gilbert + Tobin has an excellent market reputation for its top-tier client base and Gilbert’s personal commitment to sustainability and social responsibility objectives ►► DAVID FAGAN, CLAYTON UTZ Why: • Has favourably impressed clients by implementing a strong firmwide client relationship strategy which is described as a genuinely effective step to enhance relationships • Clayton Utz continues to demonstrate superior revenue growth and profitability against comparable rivals ►► GARY McDIARMID, RUSSELL MCVEAGH Why: • Leader of one of Australasia’s most consistently profitable and efficient firms – however, this has not stopped Russell McVeagh from also being rated as a Gold Employer of Choice in 2010 • Invested heavily in training and development in 2009 and protected jobs during the GFC ►► GAVIN BELL, FREEHILLS Why: • led the only large law firm that avoided legal redundancies while continuing to employ graduates, maintain business and innovate • also sits on the board of the Australian Graduate School of Management, the education committee of the Business Council of Australia and the Chairman’s panel of the Great Barrier Reef Foundation ►► ROGER PARTRIDGE, BELL GULLY Why: • Bell Gully achieved Gold Employer of Choice status • Partridge is a strongly respected leader of a highly respected firm which last year continued to build its talent base in spite of the GFC • Has led firm-wide initiatives on client service and staff engagement and continued to show strong leadership ►► SHARON COOK, HENRY DAVIS YORK Why: • HDY was one of Australia’s fastest growing firms in 2009, recording very strong organic growth • Cook continues to be well regarded by the market, particularly for her commitment to employee engagement and CSR principles and creating a collegiate, transparent work environment

DEAL CATEGORIES DEBT MARKET DEAL OF THE YEAR FINALISTS ►► TABCORP RETAIL BOND ISSUE Firms: Allens Arthur Robinson, Freehills, Mallesons Stephen Jaques Accountants: Ernst & Young Banks: UBS Why: • Tabcorp’s A$284m issue of corporate bonds on ASX described as “most significant retail bond offering by an ASX-listed company in the past 20-years” • Lack of recent comparable bond deals increased the legal complexity of the issue, particularly in relation to the level and nature of disclosure to investors www.legalbusinessonline.com

• Importance of deal and need for deals like it demonstrated by subsequent high-level of discussion between market leaders as to how to facilitate more issues of this kind ►► WOODSIDE DEBT FINANCING Firms: Allen & Overy, Clifford Chance, Corrs Chambers Westgarth, Freehills Why: • US$1bn syndicated loan facility involved 26 banks was largest of its kind by an Australian company and completed at height of financial crisis • Success and size of transaction helped establish initial momentum for Asia-Pacific loan market in Q1 2009, a period of intense uncertainty • Largest Asian syndication for an Australian corporation at time of completion; set benchmark for Asian-targeted transactions in terms of facility structure and distribution approach

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►► ING INDUSTRIAL FUND SYNDICATED FACILITY Firms: Linklaters, Mallesons Stephen Jaques, Minter Ellison, Richer & Parter, Stikeman Elliot, Torys Accountants: Grant Thornton Banks: JPMorgan Why: • A$1.8bn syndicated facility involved major restructure of borrower’s debt facilities necessitated by market placing significant strains on managed property fund industry • Restructured facility contained new robust financial covenants, security from four jurisdictions and new restrictive covenants on the borrower • Negotiations in relation to debt documentation and foreign security were complex and involved ►► ALINTA ENERGY GROUP RESTRUCTURE Firms: Allens Arthur Robinson, Chang Pistilli & Simmons, Mallesons Stephen Jaques Banks: UBS Why: • A$3.2bn restructure stabilised Alinta’s debt position vis-a-vis Babcock & Brown • Eliminated short-term refinancing risk, co-operatively resolved issues arising from the North West Shelf arbitration and formally internalised Alinta’s management and advisory functions • Extension, restructure and A$100m upsizing of existing A$2.7bn external debt facility achieved with various novel financing techniques, including introduction of contingent PIK interest arrangement and setting of financial covenants by references to budget plans and forecasts ►► BHP BILLITON SENIOR NOTES OFFERING Firms: Denton Wilde Sapte, Freehills, Sidley Austin, Skadden Arps Slate Meagher & Flom Accountants: Greenwood & Freehills, KPMG Banks: Barclays Capital, BNP Paribas, Citigroup, Goldman Sachs JBWere, HSBC Why: • A$3.25bn two tranche global bond issued under BHP Billiton’s debt shelf registration statement filed with US SEC • Largest issuance by Australian corporate as credit markets opened up following global financial crisis • One of largest public debt issuances by Australian corporate for 2009

ENERGY & RESOURCES DEAL OF THE YEAR

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FINALISTS ►► CHINA MINMETALS - OZ MINERALS ACQUISITION Firms: Blake Dawson, Freehills, Mallesons Stephen Jaques, UBS Accountants: PricewaterhouseCoopers Banks: Caliburn, Goldman Sachs JBWere Why: • A$1.3bn landmark investment was first time Chinese stateowned enterprise had acquired 100% of significant Australian mining assetscompany in the past 20-years” • Quick restructure of deal needed following FIRB rejection of scheme of arrangement • Need for complex restructuring (to de-link corporate entities holding assets being sold from those being retained by OZ Minerals and re-financing of loans at completion) led to complex escrow agreement and completion process ►► NOBLE GROUP - GLOUCESTER COAL ACQUISITION Firms: Allens Arthur Robinson, Clayton Utz, Freehills, McCullough Robertson, Minter Ellison, Accountants: Ernst & Young, Grant Samuel, KPMG Banks: Citigroup, Macquarie, UBS, Wilson HTM Why: • Involved highly public battle for coal producer and exporter Gloucester Coal • Ground-breaking proceedings before the Takeovers Panel resulted in ruling that allowed Noble to proceed with bid for Gloucester, an opportunity which previously would not have been available • Was first time reverse takeover had been tested by Takeovers Panel; “most contested” deal of 2009 ►► YANZHOU COAL - FELIX RESOURCES ACQUISITION Firms: Allens Arthur Robinson, Baker & McKenzie, Corrs Chambers Westgarth, King & Wood Accountants: PricewaterhouseCoopers Banks: UBS Why: • US$2.94bn deal was biggest ever Chinese deal in Australian coal sector; tight timeframe of four months • Approval granted by FIRB was groundbreaking – first stateowned enterprise that was able to acquire 100% of listed company; other approvals both in Australia and China were required, and deal involved managing disclosures on three exchanges – ASX, Shanghai and Hong Kong • Innovative as it featured an undertaking by Yanzhou to list Yancoal Australia on the Australian Securities Exchange by no later than the end of 2012 thereby guaranteeing public ownership

►► BG GROUP - PURE ENERGY TAKEOVER Firms: Corrs Chambers Westgarth, Freehills, Mallesons Stephen Jaques Banks: Goldman Sachs JBWere, Gresham Advisory, Wilson HTM Why: • A$1.02bn cash takeover offer, decribed as “hottest auction of 2009”, raised legal issues including managing competing bidders, takeover implementation agreements triggering break fees, truth in takeovers statements and unsolicited cross-border takeover • “Tactics, speed and masterful execution” led to BG acquiring 100% of Pure even as late bidder (Arrow bid already had support of shareholders with 50% of Pure shares) • FIRB approval secured ahead of the usual statutory timetable, allowing BG to drop all conditions to its bid and compete successfully with alternative bid (from Arrow) ►► ELDORADO GOLD - SINO GOLD SCRIP ACQUISITION Firms: Allens Arthur Robinson, Cassels Brock & Blackwell, Fasken Martineau DuMoulin, Freehills, Goldman Sachs JBWere, Macquarie, Minter Ellison Accountants: Ernst & Young, KPMG, PricewaterhouseCoopers Why: • At A$2.4bn was largest Australian scrip deal of 2009, creating a combined group worth around A$8bn listed on NYSE, TSX and ASX • Significant amount of complexity added by both cross-border nature (legal issues ranged across multiple jurisdictions including Canada, China, Hong Kong, US) and need to obtain listing (second largest of 2009) on ASX for Eldorado in form of CDIs • Striking characteristic was strategic ‘straight-jacketing’ of Sino Gold by 20% stake acquisition prior to acquisition negotiations with it ; strategic acquisition agreement included intricate price escalation provisions ►► LAKE MOKOAN DECOMMISSIONING PROJECT Firms: Mattila Lawyers Why: • Reconfiguration of major government infrastructure in Victoria was first of its type in water industry • Involved completion of 56 separate water entitlements transactions in Broken System worth US$26m • Tripartite planning and structuring of legal documents added considerable complexity (Water for Rivers was purchaser, local irrigators were vendors; and Goulburn-Murray Water was the entity responsible for monitoring and enforcement)

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EQUITY MARKET DEAL OF THE YEAR FINALISTS ►► RIO TINTO CAPITAL RAISING Firms: Allens Arthur Robinson, Freehills, Linklaters Accountants: PricewaterhouseCoopers Banks: Credit Suisse, JPMorgan, Macquarie Why: • US$15.2bn capital raising was second largest undertaken internationally in 2009 and one of largest ever capital raisings undertaken in Australia; executed successfully during turbulent times • Involved first ever rights issue undertaken by dual listed company; conducted as two interconditional and concurrent rights issues in Australia and UK • Highly complex given the DLC structure of issuer and crossjurisdictional nature of transaction), necessitating compliance with both listed companies’ constitutional requirements and regulatory and timetable constraints ►► WESFARMERS CAPITAL RAISING Firms: Allens Arthur Robinson, Blake Dawson, Mallesons Stephen Jaques, Sidley Austin, Sullivan & Cromwell Why: • Equity capital raising one of largest by an Australian corporate • Occurred in February 2009, so difficult market meant optimal time to enter capital markets had to be identified, and transaction hasd to be completed in record time frame • Incorporated accelerated pro-rata entitlement offer, was marked by institutional component of A$2bn, additional placement of A$900m to two strategic investors, and retail entitlement offer of A$1.7bn ►► ASCIANO CAPITAL RAISING Firms: Baker & McKenzie, Clayton Utz, Mallesons Stephen Jaques, Sidley Austin, Sullivan & Cromwell Why: • Landmark A$2.35bn capital raising by way of placement and accelerated entitlement offer was culmination of year-long monetisation process • Completed in extremely short timeframe, described as “extraordinary effort to cope with extreme time pressures” by media • Company-transforming transaction and largest non-financial institution raising of 2009 ►► BLUESCOPE STEEL CAPITAL RESTRUCTURE Firms: Blake Dawson, Mallesons Stephen Jaques, Sidley

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Austin, Sullivan & Cromwell Banks: Credit Suisse Why: • A$1.413bn entitlement offer fully underwritten by Credit Suisse as sole underwriter, and A$1.275bn syndicated loan note facility in two tranches • Significant initiatives which improved issuer’s financial flexibility substantially by enabling it to reduce debt and maintain robust balance sheet and liquidity position • Single underwriter necessitated innovative structure of underwritten offer ►► SANTOS CAPITAL RAISING Firms: Freehills, Mallesons Stephen Jaques, Sidley Austin, Sullivan & Cromwell Banks: Caliburn, Citigroup, Deutsche Bank, JPMorgan Why: • A$3bn capital raising represented one of largest accelerated “low doc” offers since amendments to Corporations Act permitting them • Completed with no market soundings, which allowed offer to be priced using “undisturbed” share price and also because ASIC had recently expressed intention to focus on this • Shareholder support particularly positive, andinstitutional component of offer was over-subscribed ►► CSR SIMULTANEOUS ACCELERATED RENOUNCEABLE ENTITLEMENT OFFER Firms: Freehills, Mallesons Stephen Jaques, Sidley Austin, Skadden Arps Slate Meagher & Flom Banks: RBS, UBS Why: • Fully underwritten A$375m entitlement conducted by way of new structure: a Simultaneous Accelerated Renounceable Entitlement Offer (SAREO), developed by UBS • Deal was first time new structure had been used; SAREO structure designed to address concerns of ASIC, company boards and retail investors by ensuring retail investors are treated equally in accelerated renounceable entitlement offers througha single bookbuild for renounced rights of retail and institutional shareholders after close of retail offer ►► MYER IPO Firms: Clayton Utz, Freehills, PricewaterhouseCoopers, Sidley Austin, Sullivan & Cromwell Accountants: PricewaterhouseCoopers Banks: Credit Suisse, Goldman Sachs JBWere, Macquarie

Why: • A$2.4bn most significant Australian IPO for 2009: largest IPO since beginning of GFC and first major private equity exit through public offer since beginning of GFC • Large and complex deal in challenging market conditions implemented in very short time • Undertaken in environment of significant regulatory scrutiny of capital raising and IPOs in particular as IPO is expected to set the benchmark in this regard

INSOLVENCY & RESTRUCTURING DEAL OF THE YEAR FINALISTS ►► OPES PRIME SCHEME OF ARRANGEMENT Firms: Allens Arthur Robinson, Blake Dawson, Mallesons Stephen Jaques, Middletons, Minter Ellison, Norton Rose Australia Accountants: Deloitte, Ferrier Hodgson Why: • High-profile, high-value liquidation in which many livelihoods were at stake; one of the largest corporate collapses in Australia, subject of intense regulatory scrutiny • Raised complex legal issues concerning sophisticated banking products like prime brokerage agreements and master securities lending agreements • Scheme of arrangement put to creditors unusual in that it provided for release by creditors of their claims not only against Opes Prime but also against financiers; scheme was key mechanism for global resolution of all claims and “one of the most innovative things to occur in the restructuring/ insolvency space internationally this year” ►► ELDERS CORPORATE REFINANCING Firms: Allens Arthur Robinson, Arnold Bloch Leibler, Ferrier Hogdson, Freehills, Russell McVeagh Accountants: Ernst & Young, Ferrier Hodgson, Grant Thornton Banks: Goldman Sachs JBWere, RBS Why: • Complex restructure/ refinancing involved A$550m equity raising consisting of A$400m fully underwritten conditional placement to institutional investors and A$150m share purchase plan • Proceeds applied to repay debt and reduce long-term gearing; restructure also involvedover A$700m in asset sales • Recapitalisation/ refinancing reduced net debt from A$997m

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to A$200m and significantly reduced leverage; has built more sustainable balance sheet ►► TIMBERCORP LIQUIDATION Firms: Allens Arthur Robinson, Arnold Bloch Leibler, Baker & McKenzie, Blake Dawson, Clarendon Lawyers, Corrs Chambers Westgarth, Fisher Jeffries, Freehills, Henry Davis York, Johnson Winter & Slattery, Minter Ellison Accountants: Ferrier Hodgson, KordaMentha Banks: ANZ, BOS International, CBA, Macquarie Why: • A$1.8bn liquidation involved entity responsible for 35 forestry managed investment schemes and over 18,000 individual investor growers • Highly complex because insolvency provisions of Corporations Act do not adequately deal with insolvency of responsible entity or schemes themselves, and perishable crops required unique and urgent solutions to ensure they weren’t lost • Group’s complexity and diverse holdings of relevant assets created inter-group and inter-creditor conflicts; strategy allowed sales to proceed without appointment of receivers and managers ►► ABC LEARNING CENTRES RECEIVERSHIP Firms: Clayton Utz, Gilbert+Tobin, Henry Davis York, Kemp Strang, Mallesons Stephen Jaques, McMahon Clarke, Minter Ellison, Minter Ellison Rudd Watts, Simpson Grierson Accountants: Ferrier Hodgson, KPMG,PPB Why: • “One of largest and most complex receiverships in Australian corporate history” involved rationalisation, restructuring and sale of 262 of the original 1,045 ABC childcare centres, and extensive cross-border issues • Ground-breaking rescue package involved transfer of 262 unprofitable centres to ABC subsidiaryand appointment, by NSW Supreme Court, of Stephen Parbery and Daniel Bryant of PPB as Court Receivers of subsidiary - first significant court receivership since Bond Brewing • Expedited negotiations conducted with landlords of 262 centres, prospective purchasers, licensing authorities, ABC receivers, many Commonwealth departments ►► ALLCO SALE OF AVIATION ASSETS Firms:Addisons, Allen & Overy, Allens Arthur Robinson, Blake Dawson, Chang, Pistilli & Simmons, Corrs Chambers Westgarth, Gilbert + Tobin, Mallesons Stephen Jaques Accountants: Ferrier Hodgson Banks: Citigroup Why: • Allco receivership, of which this A$3bn asset sale was just one component, was one of three largest receiverships in Australian market in 2009 • Extremely complex aircraft leasing company sale, involving wide range of Australian and international stakeholders, airlines and other financing companies • Complex nature of the business and the challenging investment climate added to the transactions overall complexity

M&A DEAL OF THE YEAR FINALISTS ►► YANZHOU COAL - FELIX RESOURCES ACQUISITION Firms: Allens Arthur Robinson, Baker & McKenzie, Corrs Chambers Westgarth, King & Wood, Accountants: PricewaterhouseCoopers Banks: Citigroup, UBS, Wilson HTM Why: • US$2.94bn deal was biggest ever Chinese deal in Australian coal sector; tight timeframe of four months • Approval granted by FIRB was groundbreaking - first stateowned enterprise that was able to acquire 100% of listed

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company; other approvals both in Australia and China were required, and deal involved managing disclosures on three exchanges - ASX, Shanghai and Hong Kong • Innovative as it featured an undertaking by Yanzhou to list Yancoal Australia on the Australian Securities Exchange by no later than the end of 2012 thereby guaranteeing public ownership ►► HUTCHISON - VODAFONE MERGER Firms: Allens Arthur Robinson, Clayton Utz, Corrs Chambers Westgarth, Freehills Accountants: PricewaterhouseCoopers Banks: Goldman Sachs JBWere, UBS Why: • Merger of Hutchison’s A$2.5bn Australian telecommunications business with Vodafone; created JV which has revenue of A$4bn, six million customers and is third largest mobile operator in Australia • Complex integration of two businesses was “industrychanging transaction” lasting several months that included intense focus on securing clearance from ACCC; complex regulatory reviews required • Combination of public and private M&A; novel break fee and lock up arrangements involving Hutchison Australia, Hutchison Whampoa and Vodafone Plc ►► ASAHI - SCHWEPPES ACQUISITION Firms: Baker & McKenzie, Freehills Accountants: Deloitte, PricewaterhouseCoopers Banks: Rothschilds, UBS Why: • A$1.2bn transaction one of most significant in Australian nonalcoholic beverages industry, and one of largest successfully completed cross-border M&As in Australia in 2009 • Involved significant FIRB regulatory issues, and one completed within considerably turbulent economic conditions in very tight time frame • Cadbury’s beverage and confectionery businesses needed to be de-coupled prior to the sale, which gave rise to considerable complexity in transfer of significant IP portfolio and workforce ►► KIRIN - LION NATHAN ACQUISITION Firms: Blake Dawson, Mallesons Stephen Jaques, Milbank Tweed, Russell McVeagh, Sidley Austin, Simpson Grierson, Sullivan & Cromwell Banks: Caliburn, Deutsche Bank, JPMorgan Why: • Purchase for A$3.3bn by Kirin of remaining 54% of shares it didn’t already own in Lion Nathan was largest investment ever by a Japanese company in Australia and created one of the largest food and beverages company in Asia-Pacific • Involved negotiation of certain amendments to Lion Nathan’s US debt financing documentation to permit scheme of arrangement to proceed • Substantial teamwork required from both parties to negotiate and resolve challenging issues arising from this transaction ►► NOBLE - GLOUCESTER COAL TAKEOVER Firms: Allens Arthur Robinson, Clayton Utz, Freehills, McCullough Robertson, Minter Ellison Accountants: Ernst & Young, Grant Samuel, KPMG Banks: Citigroup, Macquarie, UBS, Wilson HTM Why: • Involved in highly public battle for coal producer and exporter Gloucester Coal • Ground-breaking proceedings before the Takeovers Panel resulted in ruling that allowed Noble to proceed with bid for Gloucester, an opportunity which previously would not have been available • Was first time reverse takeover had been tested by Takeovers Panel; “most contested” deal of 2009 ►► BG GROUP - PURE ENERGY TAKEOVER Firms: Corrs Chambers Westgarth, Freehills, Mallesons Stephen Jaques Accountants: Greenwood & Freehills

Banks: Goldman Sachs JBWere, Gresham Advisory, Wilson HTM Why: • A$1.02bn cash takeover offer, decribed as “hottest auction of 2009”, raised legal issues including managing competing bidders, takeover implementation agreements triggering break fees, truth in takeovers statements and unsolicited cross- border takeover • “Tactics, speed and masterful execution” led to BG acquiring 100% of Pure even as late bidder (Arrow bid already had support of shareholders with 50% of Pure shares) • FIRB approval secured ahead of the usual statutory timetable, allowing BG to drop all conditions to its bid and compete successfully with alternative bid (from Arrow)

PROJECT FINANCE DEAL OF THE YEAR FINALISTS ►► PNG LNG PROJECT Firms: Allens Arthur Robinson, Baker & McKenzie, Blake Dawson, Freehills, Latham & Watkins, Sullivan & Cromwell Why: • At US$14bn was world’s largest project financing to reach financial close in 2009; biggest loan facility in history for oil & gas project; project has potential to double GDP and triple export income for PNG • Used novel project structure involving offshore marketing and borrowing company funding underlying unincorporated JV; numerous challenges arose from many underlying unincorporated JVs constituting upstream part of project • Challenges involved in developing: financing terms that satisfied requirements of all banks, ECAs and capital markets; and solutions to various requirements and constraints of stateowned participants ►► VICTORIAN DESALINATION PROJECT Firms: Allens Arthur Robinson, Clayton Utz, Corrs Chambers Westgarth, Mallesons Stephen Jaques, Minter Ellison Accountants: PricewaterhouseCoopers Banks: Macquarie, Westpac Why: • At A$3.5bn was biggest PPP transaction closed in 2009; speedy delivery of complex project within initial contract deadline • Funding and equity arrangements were complex and required innovative funding structures to secure finance in very challenging economic climate; number and variety of equity and debt investors presented enormous challenge • Novel mechanisms dealing with sharing by government in market disruption risk and refinancing losses were developed and have since become industry standard ►► SW QUEENSLAND PIPELINE STAGE 3 Firms: Clayton Utz, Freehills, Mallesons Stephen Jaques Banks: JPMorgan Why: • A$1.3bn financing was complex due to large senior bank group with varied participation across tranches, and intricate repayment, subordination, intercreditor and co-ordination arrangements • Had broad scope: banks from Australia, Europe and Asia, Singaporean sovereign wealth fund provided mezzanine debt, extended over key jurisdictions of WA, QLD, SA, and significant offshore tax considerations • Involved legal expertise in finance, projects, property/ environment, corporate as well as substantial market, technical, accounting and tax due diligence

NZ DEALMAKER OF YEAR FINALISTS ►► BRYNN GILBERTSON, BELL GULLY Why: Australasian Legal Business ISSUE 8.4

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• Key transactions 2009: Fletcher Building capital raising (largest in NZ for 2009 and first to include “top up” component); Fisher & Paykel Appliances recapitalisation. Currently working on a number of other capital raising proposals to be brought to the market in first half 2010, including Rubicon, the first in NZ to adopt a SAREO structure • Also active in M&A area, advising the NZ Superannuation Fund (NZSF) on the proposed acquisition by NZSF and Infratil of Shell New Zealand’s refining and downstream business ►► SIMON VODANOVICH, BUDDLE FINDLAY Why: • Key transactions 2009: led two Japanese clients, Suntory and Daiken New Zealand, to the successful acquisition of Frucor Beverages from Danone and Carter Holt Harvey’s Rangiora MDF plant respectively • Also advised Olam International on various dairy sector acquisitions and listed healthcare provider Abano Healthcare Group on acquisitions and disposals throughout NZ ►► JOHN STROWGER, CHAPMAN TRIPP Why: • Key transactions 2009: QIC Infrastructure’s NZ$400m acquisition of 50% interest in Powerco; Kathmandu IPO which raised circa US $300m, the largest IPO in New Zealand since 2005 • Also advised PGW’s NZ$250m rights issue and associated placements to new Chinese cornerstone investor and Agria Corporation Direct Capital on its NZ$325m private equity fundraising, comprising the retail IPO of Pohutukawa II and DCIV limited partnership for institutional investors ►► PIP GREENWOOD, RUSSELL MCVEAGH Why: • Key transactions 2009: represented underwriters in capital raisings for Pyne Gould Corporation (NZ$267m), PGG Wrightson (est NZ$250m) and acting for Freightways (NZ$50m), Kiwi Income Property Trust (NZ$50M), AMP NZ Office Trust (NZ$201m) and, with Partner Garth Sinclair, SKYCITY (NZ$228m) • Also also acted for NAB in the acquisition of JBWere and of AXA and for Downer EDI on a bond deal and for Kiwi Income Property Trust on their Mandatory Convertible Note

NZ DEAL TEAM OF THE YEAR FINALISTS ►► BELL GULLY – CORPORATE/ M&A TEAM Why: • Team was involved in two highly significant corporate NZ recapitalisations (Fisher & Paykel Appliances and Pyne Gould Corporation), the largest capital raising (Fletcher Building) and the largest M&A transaction (Danone Asia Pte Limited’s sale of Frucor) • Advised on several ground breaking transactions including first “top up” offer (Fletcher Building’s equity raising) and first offer of securities in NZ utilising the new Securities (Mutual Recognition of Securities Offering - Australia) Regulations 2008 (AMP Notes offer) ►► BUDDLE FINDLAY – CORPORATE/ COMMERCIAL TEAM Why: • Highlights of 2009 included advising Suntory on its NZ$1.4bn acquisition of Frucor Beverages and Daiken and ITOCHU Corporation on their acquisition of Carter Holt Harvey’s Rangiora MDF plant • Also advised HRL Morrison & Co on its acquisition of a 26% stake in Fisher Funds Management and advised HRL Morrison & Co on the fund formation of Public Infrastructure Partners LP, a NZ$500m investment fund dedicated to PPPs ►► CHAPMAN TRIPP – CORPORATE TEAM Why: • Highlights for 2009 included ING’s sale of ING (NZ) (overall project worth A$1.76bn), the US$44bn merger between Merck and Schering-Plough, US$117m sale of Bay Audiology and the Hanover asset sale/moratorium unwind www.legalbusinessonline.com

• Advised on Direct Capital’s $325m private equity fundraising, comprising a retail IPO and institutional limited partnership and Kathmandu’s IPO, the largest of 2009 ►► RUSSELL MCVEAGH – CAPITAL MARKETS TEAM Why: • Of the eleven major equity raisings in New Zealand in 2009, Russell McVeagh’s capital markets team acted on nine. In seven of those transactions the team acted for the client directly and in two of them it acted for the underwriters • In the debt and hybrid markets space, highlights included transactions for Goodman Property Trust, NZ Post, Meridian and .Auckland City Council ►► SIMPSON GRIERSON – CORPORATE/ COMMERCIAL TEAM Why: • 2009 highlights included advising Haier Group on the NZ$80m acquisition of its cornerstone shareholding in Fisher & Paykel Appliances; and advising Agria, a NYSE listed Chinese agriculture business, on its NZ$120m investment in PGG Wrightson • Other notable capital markets transactions were advising on OceanaGold Corporation’s international institutional placement and the Auckland City Council’s $150 million retail bond issue, the first example of a local authority making a listed securities issuance

AUSTRALIAN DEALMAKER OF THE YEAR FINALISTS ►► JAMES MARSHALL, BLAKE DAWSON Why: • Advised on the first successful application under Australia’s new cross-border Insolvency Act, achieved a successful result for Samsun Logix Corporation, a Korean shipping conglomerate which was in formal rehabilitation proceedings in Korea • Has played a significant role in shaping Australia’s insolvency and restructuring legal market, through involvement in law reform and in landmark matters ►► NIC TOLÉ, ALLENS ARTHUR ROBINSON Why: • Worked on multiple Rio Tinto deals with potential value of over US$200bn. These included advising Rio Tinto on BHP Billiton’s US$107bn unsuccessful ‘pre-conditional’ offer, the US$1.5bn sale of Corumba iron ore mine/related logistics business and Argentinean potash project to Vale in December 2008/January 2009 • Other major Rio Tinto deals include the US$19.5bn Rio Tinto/ Chinalco transaction, China’s biggest investment outside China, involving Australian, Indonesian, Chilean, USA and Peruvian assets. Deal was done within a short six-week timetable.

Tole also advised on the US$100b Rio Tinto/BHP iron ore JV, completed under incredible pressure in a six-week period ►► PHILIPPA STONE, FREEHILLS Why: • 2009 highlights included Prime Infrastructure’s A$1.8bn recapitalisation, asset sales and refinancing, Viterra Inc’s A$1.6bn acquisition of ABB Grain by scheme of arrangement and Macquarie Communications Infrastructure Group’s A$1.6bn acquisition by CPPIB by scheme of arrangement • ECM transactions where Stone advised underwriters / lead managers include Rio Tinto’s US$15.2bn rights issue; CSR’s innovative SAREO; Westfield Group’s A$2.9bn placement; ANZ’s A$1bn CPS issue and Westpac’s SPS I (A$600m) and SPS II (A$442m) ►► STUART BYRNE, CLAYTON UTZ Why: • Acted as lead partner on the two largest floats of the year: the A$340m Kathmandu IPO (for the issuer) and the A$2.3bn Myer IPO (for the lead managers) • Acted for Asciano (as issuer) on its strategically signficant A$2.35bn capital raising, a company transforming transaction and the largest non-financial institution raising of the year

AUSTRALIAN DEAL TEAM OF THE YEAR FINALISTS ►► ALLENS ARTHUR ROBINSON EQUITY MARKETS TEAM Why: • Highlights of 2009 included the massive US$15.2bn Rio Tinto rights issue and the A$4.6b Wesfarmers capital raising, the largest capital raising by an Australian corporate • Also advised on Amcor’s A$1.6b entitlement offer, forming part of A$3.1bn equity and debt funding package for the acquisition of Rio Tinto Alcan packaging, the first material acquisition funding deal in the Australian market post GFC ►► BLAKE DAWSON RESTRUCTURING AND INSOLVENCY TEAM Why: • Primary legal counsel on the majority of high profile insolvency appointments of 2009, including Allco Finance and Babcock & Brown • Strong reputation in this field and demonstrated innovation in the distressed investing and debt trading area • Active in regional law reform and development ►► CORRS CHAMBERS WESTGARTH CORPORATE ADVISORY TEAM Why: • Team advised on 12 of the largest 50 cross-border announced deals involving an Australian target in 2009, with a total value of A$7.7bn • Deals included A$7.87bn merger of Vodafone Australia and Hutchison 3 and Yanzhou Coal Mining Company’s on its A$3.3bn acquisition of Felix Resources ►► CLAYTON UTZ PROJECT FINANCE TEAM Why: • Developed innovative structures on the Victorian Desalination Plant PPP and the Victorian Biosciences PPP for dealing with funding issues to secure finance in highly challenging economic times • Desalination Plant PPP raised unprecedented challenges associated with the range of equity and debt investors and significant political pressures. A unique aspect was AquaSure’s raising of a portion of debt required subject to a syndication guarantee by the Victorian Government ►► FREEHILLS CORPORATE AND M&A TEAM Why: • Highlights of 2009 included Eldorado Gold’s takeover of Sino Gold Mining - the largest scrip bid of the year (A$2.2bn) – and OZ Minerals’ sale of key assets to China Minmetals (A$1.75bn).

Reputation for involvement in innovative and market-defining transactions • Ranked No.1 in Bloomberg, Thomson-Reuters and Mergermarket tables of advisors ranked by most number of M&A deals ►► MALLESONS STEPHEN JAQUES CAPITAL MARKETS TEAM Why: • Had key role in lion’s share of high-profile capital raisings in 2009 including Wesfarmers’ A$4.7bn institutional and retail entitlement offer and placement, Santos’ A$3bn capital raising, Asciano’s A$2.5bn capital raising, NAB’s A$2bn placement and Stockland’s A$1.98bn capital raising • In 2009, Mallesons acted on all but one of the hybrid deals in the market including, the A$1,081 million tier one ANZ convertible preference shares (CPS), A$735 million tier one Suncorp CPS, Bendigo and Adelaide Bank CPS issue, and CBA PERLS V

NEW ZEALAND DEAL OF THE YEAR To be announced at the Awards

AUSTRALIAN DEAL OF THE YEAR To be announced at the Awards

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SPONSORS ADERANT

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SPONSORS Hudson Gavin Martin Created in November 2007, this boutique firm has securely established itself in the market as a recognised leading firm in technology and intellectual property law. Hudson Gavin Martin focuses on the commercialisation of IP, trade mark infringement, copyright, brand protection and development, the acquisition and sale of technology businesses, capital raising, technology licensing and telecommunications advice. Since its creation Hudson Gavin Martin has continued to grow and has been involved in a number of significant transactions and developments in the IP and technology sector.

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With many existing relationships with legal practices Work Arena are able to meet all your furniture needs with the highest level of professional service.

Contact details Ross Harding, director T: 0413 433 533 Email: rharding@workarena.com.au Website: www.workarena.com.au Australasian Legal Business ISSUE 8.4

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EVENTS | Australasian Law Awards >> SPECIAL FOCUS | Mallesons >>

LNG opportunities put at risk by regulatory regime “Political risk could well be the primary regulatory issue for LNG developments in Australia”

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ustralia is emerging as one of the world’s largest LNG producers, and, given the strong global demand for LNG as a clean energy source, this opportunity should be opening doors to new trade and investment prospects.

However, there are still some significant hurdles to be overcome for Australia to best position itself as an attractive option for LNG developers.

A case in point is the need for greater clarity regarding the Government’s regulation of LNG developments.

Political risk could well be the primary regulatory issue for LNG developments in Australia. This risk essentially stems from the wide discretionary powers conferred on Government under the petroleum legislation coupled with a lack of clear and consistently applied policy regarding the development of LNG projects. This uncertainly is best illustrated by considering retention leases under the petroleum legislative framework.

Increasingly, it appears as though the Government has an appetite for using its legislative discretion under the retention lease regime to find backdoor avenues to influence development decisions which traditionally would have been left to private investors. The use of Government decision-making powers may see petroleum players compelled to supply into the domestic gas market, or forced to adopt the Government’s preferred timeline for their development, or location, for onshore elements of their project.

Retention leases

Retention leases allow petroleum titleholders to retain tenure over discovered resources which are not currently commercially viable. To qualify for a retention lease, the legislation requires the relevant Government authority to be satisfied that, among other things, recovery of petroleum from the area is not currently “commercially viable”.

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retention leases under the Australian legislation is not entirely clear. This uncertainty arises primarily from the application of the commercial viability test. The legislation does not set out the factors to be considered in assessing commercial viability, and accordingly, the content of the test has thus been largely left up to the policy drivers of the Government of the day.

For the current Government, that policy has been described as a “use it or lose it” approach, triggered by a perception that some oil and gas companies are hoarding significant reserves, choosing to delay developments in favour of, for example, developing overseas projects or warehousing gas to use later as feedstock for other developments.

In June last year, the Commonwealth Minister for Resources and Energy announced that his department would take a tougher stance when applying the commercial viability test, to ensure that fields were developed “at the earliest possible time”. Nevertheless, the Government released a discussion paper which acknowledged the need to encourage investment in the LNG market and that in some cases, warehousing gas is essential if largescale and long-term projects are to be made viable.

Timing and location of development

The discretionary powers surrounding the regulation of retention leases can have the effect of allowing the Government to set the timeline for development steps of a project, as was recently the case with the Browse development. Rather than forcing the Browse joint venture to consider moving immediately to a production licence by refusing renewal of, or revoking, their retention leases, the Government used its discretionary power under the legislation to impose conditions on the renewal of retention www.legalbusinessonline.com

leases in an unusually prescriptive way.

The Government’s response to the usual retention lease renewal applications by the Browse joint venture effectively required the joint venture to adopt the Government’s timeline for development steps or risk losing the retention leases.

The Government’s response on Browse also saw it weigh in on another element of LNG developments - project location. Again, the Government used its discretionary power to impose conditions on the retention lease renewals to favour the location of the LNG train at James Price Point. This was despite the fact that, at the time of the joint venture’s applications for renewal, it had been reported that the preferred development concept was still being considered at the operating committee level.

Domgas

The increasing government footprint on LNG development decisions is also evident with respect to sales of gas recovered from commercial production.

The potential for the Government to require, through regulatory means, that a proportion of product from an LNG development must be reserved for supply into the domestic gas market is of particular significance.

Various state governments have released their own policies on the issue. To date, the approach by the States has been to use their project approvals processes as a mechanism for imposing the reservation, as they have no legislative machinery for enforcing the policy. While the Commonwealth Government stated, in its 2009 options paper, that commercialisation of a field to supply the domestic market is a factor that would be considered in the grant or renewal of retention leases, there is no express Commonwealth domgas reservation policy at this stage.

Risk of skills shortages

There are a range of other concerns raised by the Government’s recent involvement in LNG development decision-making. For example, requiring projects to be developed as early as possible could lead to skills shortages, due to many developments occurring at the same time. A “use it or lose it” policy may also incentivise companies to opt for floating LNG, which could decrease Government revenue because there are less onshore works involved.

So while the Government is clearly looking towards Australia’s economic and energy future in promoting LNG, it has retained substantive discretions, which give it the flexibility of dealing with issues on a political or case-by-case basis. The risk of this non-committal approach is that LNG market players may view Australia as a riskier investment option because of ongoing uncertainty as to how regulatory powers will be exercised.

Tim Warman partner, Mallesons Stephen Jaques

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EVENTS | Australasian Law Awards >> SPECIAL FOCUS | Mallesons >>

CASE STUDY: How Queensland is grappling with LNG regulation “With up to eight LNG projects proposed in some shape or form in the State, the emergence of coal seam gas as an energy resource has thrown up a number of regulatory issues”

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future LNG industry has emerged in Queensland off the back of large underground land-based Coal Seam Gas (CSG) reserves.

As has been widely reported, Queensland has experienced unprecedented Australian and international interest in LNG projects over the last two to three years, with the State Government taking steps to facilitate this emerging market through initiatives such as its blueprint for Queensland’s LNG industry.

With up to eight LNG projects proposed in some shape or form in the State, the emergence of coal seam gas as an energy resource has thrown up a number of regulatory issues that the Government, industry and the community are grappling with.

A number of key regulatory reforms have either been implemented or announced in recent times in direct response to the growth of CSG and

LNG projects and the sheer scale of the production tenements that will supply LNG plants and the domestic gas market.

Domestic Gas Policy

Last September, the Queensland Government released its proposed Domestic Gas Policy, to ensure energy security through the regular supply of gas to domestic markets. The Policy proposed two options: a gas reservation regime (requiring existing petroleum tenement holders to make available a proportion of gas for domestic use) and a land reservation policy (reserving particular tenures for future supply to the domestic market).

Following public consultation, the Government announced its decision to opt for the implementation of a land reservation policy in preference to gas reservation. Under the land reservation policy, yet-to-be-announced gas fields will be identified and set

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aside to supply gas to the domestic market. It is expected that legislation will be introduced to give effect to the land reservation policy.

Land access

Given the increase in exploration and production tenures required to supply CSG for LNG production, the Government plans to introduce legislation to improve landholders’ rights when their land is being accessed for resources projects.

The proposed legislation is intended to provide greater consistency and transparency in land access negotiations and will result in the development of a Code of Practice to guide negotiations between interested parties. It may also require changes to the existing compensation regimes.

Water management

A peculiar aspect of CSG production is that water contained within a coal seam generally needs to be extracted to promote gas recovery. Water quality can vary but may include water high in salt.

Water management has generally involved the construction and operation of evaporation ponds, however the Government has announced a new policy position which will see existing evaporation ponds phased out and new requirements imposed on tenement holders to manage and treat water.

This will be addressed through existing environmental assessment and approvals processes. A Bill was introduced to State Parliament earlier this month to amend existing environmental assessment and

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approvals processes.

Looking forward, it will be necessary for tenement holders to look at alternative ways to treat CSG water including re-injection, treatment and supply for third-party beneficial uses.

Overlapping tenures

With the increase in petroleum tenures for CSG comes the risk of competing interests between mining and petroleum tenement holders.

Queensland has a legislative regime to allow for resolution of overlapping mining and petroleum tenure issues but the processes are relatively new.

The current overlapping tenure regime is somewhat complex. The specific rights and obligations of overlapping mining and petroleum tenement holders vary, depending on the type of tenement (i.e. exploration or production) and whether the tenement has been approved or is in the application phase.

In many cases, the regime requires negotiation between the parties to agree the terms of a co-development arrangement to allow the extraction of both petroleum and mineral resources.

In circumstances where arrangements for co-development cannot be agreed, the relevant Minister may be required to make a final preference decision to grant either the petroleum or mining tenement.

Another regulatory matter that is yet to be fully played out is the Government’s attitude to pilot projects involving Underground Coal Gasification (UCG). This is a process by which coal seams are ignited underground, resulting in the

production of syngas which can be supplied to markets.

The Government is permitting certain pilot projects to operate under an exploration tenement, to test the potential viability of a syngas industry.

The Government’s position on whether or not production tenures should be granted for UCG will be known in the next two years.

Matthew Austin partner, Mallesons Stephen Jaques

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FEATURE | interview >>

IN-HOUSE PERSPECTIVE

Louise Baldwin, Centennial Coal

Another day at the coalface Centennial Coal general counsel Louise Baldwin speaks with ALB about the coal industry and some classic “dos and don’ts” for external advisors

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ouise Baldwin still remembers her first trip down an underground coal mine. “It was pitch-black, uneven, wet and slippery with a lot of heavy machinery – so you really understand why OH&S is so hugely important for a mining company. But even from the perspective of advising on other [legal] matters, it helps to physically see the site and have that visual knowledge of operations,” Baldwin says.

The story of Centennial Coal’s legal team demonstrates the rising importance of the in-house lawyer in modern industry. When Baldwin joined four years ago, she was the company’s first – and only – in-house lawyer. Since then, the team has grown to four lawyers, including two part-timers, advising on an ever-growing workload of matters which include OH&S, environment advice and litigation, group procurement and contracting, ASX listing rule requirements and corporate governance matters, among many others.

Baldwin says that one of her more important roles is coordinating the use of external advisers. “That’s one of the most important value-adds – to help the business when we are seeking external advice, to ensure that we are asking the right questions and the right people –

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“If advice is prepared for me to read, assume I know the basics about, say, how a contract is formed. I often just need to know the answer – not necessarily the case law or the principles” we have a pretty broad panel of firms.”

Centennial has ten coal mines throughout New South Wales, the newest of which is at Airly, northwest of Lithgow. The company is also investigating the expansion of existing mines, undertaking new exploration and developing new projects.

On site

Gaining closer knowledge of the client’s business is the topic du jour for law firms. Does this mean that Centennial Coal’s external advisers should follow Baldwin’s example and don the hard hat for a mine visit?

She says that this comes down to the area of advice the lawyer is providing: while site knowledge is an advantage in areas such as OH&S, planning and environment or for specific projects, this is not so much the case for corporate advisory work.

Baldwin draws attention to the

Louise Baldwin

Centennial Coal

importance of understanding industry parlance. “It’s not terribly important to me if external advisors don’t know a lot about coal mining. But if I’ve got an external adviser who has come in to talk to our senior management team or our board, it helps if they can speak the language. It’s not about credibility – you can assume that someone could be a great lawyer even if they don’t know the mining jargon – but senior management and the board may be more comfortable and have confidence in them if they do.”

External advisers

Baldwin has a high regard for Allens Arthur Robinson, and in particular rates partner Tony Wassaf. “There would be few external advisors that know the industry better than he does – he’s been around for over 20 years,” she observes. While Baldwin has a number of contacts at AAR stemming Australasian Legal Business ISSUE 8.4

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“The market tends to be dominated by the multinationals – BHP, Rio Tinto, Anglo, Xstrata – and then there are a number of smaller producers and there is obviously potential for those smaller players to come together” Louise Baldwin

Centennial Coal

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from her many years as a senior associate at that firm, she says that other advisers drawn from Centennial Coal’s panel have impressed. These include Blake Dawson’s Mark Brennan (“in two instances he has absolutely saved the day for us”) and Freehills’ Tony Damian (“terrific, active in identifying issues, great to work with”).

Of course, using top-tier advisers means paying top-tier fees, but Baldwin says that this is a worthwhile investment. “I’d rather pay, for example, Tony Damian A$750 an hour than pay someone else A$500 and not get the right advice," she says. “That’s part of the benefit of in-house Tony Damian lawyers – we know who Freehills the good lawyers are and how to get the best value for the company’s money.

“My focus is on value for money, not simply the cost or price paid. That said, we also have good relationships with some of the smaller firms, including Sparke Helmore in Muswellbrook, that work with us on, say property purchases, mining title matters or less strategically important jobs. ” Some of Baldwin’s commoditised work is billed on a fixed-fee basis and she is also attracted to the idea of contracting major transaction work on a “pain share, gain share” arrangement.

However, she is not adverse to the concept of hourly billing, provided there is transparency in the process. She reviews bills carefully and says that partners Mark Brennan need to check their bills Blake Dawson thoroughly before sending them. “For example, if you’ve got a team of people all on the same conference call, make sure they’ve all recorded the same time. I was on that call, and I know how long it was.”

Charging for advice which has not yet been received is another common problem. But the practice which causes Baldwin the most consternation is the appending of trivial disbursements

to a bill. “I’ll receive a bill for, say, A$80,000 in fees and at the bottom there’s a A$2.50 charge for photocopying! Absorb it yourself – if (firms) are charging the hourly rates that they do, surely they can afford to pay for a bit of photocopying.” She has no problem, however, with genuine third-party disbursements, where the firm has been left out of pocket.

She says that it is also important for external advisers to tailor their advice to the specific audience, and in particular, to understand that legal advice for an in-house lawyer should be different from that provided to a non-lawyer. “If advice is prepared for me to read, assume I know the basics about, say, how a contract is formed.

I often just need to know the answer – not necessarily the case law or the principles.”

M&A

A number of commentators have predicted that the resources sector – and particularly coal – is set for more M&A activity this year. Baldwin agrees that this could be the case, but notes that there seems to have been a shift by the Foreign Investment Review Board in its approach to foreign investment. “During the recent Felix–Yanzhou takeover, FIRB indicated that it would prefer more of a partnership approach than a complete takeover, so Australian shareholders would still have a role and there have been comments to that effect made by fairly senior people at FIRB. That said, I think you will still see acquisitions from China and India.”

Local M&A has also been active, with Macarthur’s interest in Gloucester being the most recent example. “It has happened, and I can’t see why it wouldn’t continue to happen, particularly with junior miners,” says Baldwin. “The market tends to be dominated by the multinationals – BHP, Rio Tinto, Anglo, Xstrata – and then there are a number of smaller producers and there is obviously potential for those smaller players to come together. But I don’t think our industry is different from any other in that respect.” ALB Australasian Legal Business ISSUE 8.4

FEATURE | insurance >>

THE EVOLUTION OF THE INSURANCE PRACTICE

The Australian economy may be emerging from the GFC but insurers are still experiencing the effects of the fallout. Law firms are now busy with a spike in claims work as the debris settles

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t’s no surprise that law firms are busy with disputes relating to the financial services industry. Investors everywhere are looking for ways to supplement their GFC losses and failing businesses have triggered claims on directors and officers liability (D&O) and financial lines policies.

“There has been a steady increase in claims generally, with a large spike in financial lines claims and, in particular, claims against financial planners, mortgage intermediaries and others involved in what was a fairly

rabid lending cycle,” says Adam Chylek, a partner at Wotton + Kearney. “Claims against valuers are also on the increase – claimants in that area are becoming more sophisticated and organised.”

Aggrieved investors are also gathering together and engaging plaintiff counsel to fight their case. “They are geared up and ready to go,” says Linda Murphy, a partner at Colin Biggers & Paisley.

Some are looking to make claims against financial advisors who have professional indemnity policies behind them. “It seems to be a nice, neat way for the funders and Australasian Legal Business ISSUE 8.4

FEATURE | insurance >>

construction industry. Those are now ending and people haven’t been doing so much construction in the last few years.

Now we are seeing more disputes arising out of the financial world.”

The major financial collapses affected not only corporate investors but also trickled down to hit the ‘mums and dads’ investors. Moray & Agnew is working across this spectrum, dealing with a volume of claims by individuals to major class actions, including the A$150m class action arising from the collapse of Pan Pharmaceuticals.

Increase in regulation

the investors to go,” she says.

This seems to be fairly consistent across the board. “Our experience is reflective of what’s been happening in the insurance industry,” says Geoff Connellan, Moray & Agnew’s professional indemnity national practice group leader Geoff Connellan and head of the general Moray & Agnew insurance practice in Sydney. “Two or three years ago we were working on claims relating to the www.legalbusinessonline.com

“Where there is an exposure, underwriters are trying to manage the risks in-house … there is definitely a focus on not letting matters just get caught on the litigation treadmill” John Moore

Thynne & Macartney

“When things go wrong, governments react and they have reacted pretty promptly to the GFC issue,” says Connellan. The regulatory focus on the insurance industry really began to escalate following the collapse of HIH – since then there have been a number of regulations introduced with respect to the financial services industry. “There are claims for breaches of those new regulations and from a Kemsley Brennan legal perspective there Colin Biggers & is a need for lawyers to Paisley provide services to all those involved in that industry, for example, in relation to compliance and so forth,” he explains. “We have identified and embraced the need that our insurer clients have for receiving regulatory advice.”

Now faced with a global financial mess, regulators are left wondering how best to avoid another crisis. “There has certainly been an increase in the focus by regulators on the role of corporations and directors and their obligations,” says Kemsley Brennan, special counsel at Colin Biggers & Paisley. “Globally, [the regulators] are all on the warpath.”

This leads to discussion about directors’ duties and how they are to balance their obligations under law and their own 71

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“The days of keeping a file open for a long time and hoping nothing happens are over because insurers are keen to understand their exposure. It’s very much a hands-on role” Adam Chylek

Wotton Kearney

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exposure when things go wrong.

Lawyers are combining legal advice about the legality of a director’s course of conduct and their resulting exposure under D&O policies.

Pro-active advice

“The days of keeping a file open for a long time and hoping nothing happens are over because insurers are keen to understand their exposure,” says Wotton + Kearney’s Chylek. “It’s very much a hands-on role. This is slightly different to the passive role that PI and FI insurers have taken in the past. The environment is such that if some of the worst-case scenarios develop and you’re not ready for it, the numbers can be quite devastating.”

This means that lawyers are working closely with their clients to assist in the management of risks. “The lawyer can offer contributions about identification of risks and how they might be dealt with

effectively. That sort of assessment is far better, in my opinion, made by a team where you have the technical people, commercial people and the legal people all working together,” says Greg Skehan, a partner at Colin Biggers & Paisley.

The concept of risk management in insurance matters is not a new one, and certainly has always been a part of the insurance lawyer’s role. Yet insurers and underwriters are now looking to actively manage their claims earlier rather than later. “We have always been engaged early [to advise on a claim]. It’s not a new phenomenon John Moore for us,” says John Moore, Thynne & partner at Thynne & Macartney Macartney. “But one thing I would note is that, where there is an exposure, underwriters are trying to manage the risks in-house.

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FEATURE | insurance >>

“They are getting in and tidying it up if they can… and there is definitely a focus on not letting matters just get caught on the litigation treadmill,” he says.

Litigation is costly and time-consuming and early resolution is one important aspect of effective claims management.

“There’s been a big push, independent of the GFC, to make strategic decisions to head off class actions at the pass and to make fully informed decisions on how to deal with individual claims which arise for strategic benefit,” says Richard Midgley, partner at Moray & Agnew.

Of course, each individual claim has to be assessed on its merits, says Moore.

It’s not just about the early settlement of each and every claim – legal expertise plays an important role in estimating the net result. “Resolve a claim on its merits and be pragmatic where you need to be and that comes with experience in different classes of claims,” says Moore.

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“Sometimes you have to swallow your pride and move on and resolve a case … but you can’t apply generalisations. You have to be careful to look at it on a caseby-case basis.”

The great debate – boutique or full-service?

Insurers are notoriously sophisticated and savvy purchasers of legal services.

They are fully aware that they provide a steady source of legal work for an insurance law practice and this has traditionally created pressure on fees. As a result, the Adam Chylek legal services market Wotton + Kearney for insurance work has evolved. “The vast majority of work seems to be undertaken by a smaller number of firms, particularly those with a focus on insurance,” says

“The lawyer can offer contributions about identification of risks and how they might be dealt with effectively. That sort of assessment is far better, in my opinion, made by a team where you have the technical people, commercial people and the legal people all working together” Greg Skehan

Colin Biggers & Paisley

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“There’s been a big push, independent of the GFC, to make strategic decisions to head off class actions at the pass and to make fully informed decisions on how to deal with individual claims which arise for strategic benefit” Richard Midgley

Moray & Agnew

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Chylek. “That is probably highlighted by the growth and increasing presence of boutique insurance practices.”

That’s not to say that insurance law practices within full-service firms are losing out. “At the lower end of the claims market, the boutique firms have less overhead and can handle [low-cost claims work]. But you start getting into the higher end of town –class actions, big D&O claims, corporate collapses – and they are going to be way out of their depth, both in relation to capacity and resources,” says Skehan.

“We know they’re in the market, but have we lost work? No.” Colin Biggers & Paisley is pitching at a different level to those boutique firms that offer costeffective, high-volume work solutions for insurers, explains Murphy.

It is this reputation for high-volume, low-cost work which plagues the boutique insurance practice. “There seems to be a very large lag in market perception in this area,” says Connellan, who says he joined Moray & Agnew, in part, because he wanted to work on more complex

professional indemnity matters. “Five years ago and probably for the next five years, people will have the same perception of Moray & Agnew as they did 20 years ago. It takes a long time to gain a reputation and it also takes a long time to lose one.”

While the firm may have a certain market reputation for its volume work, Connellan says this fails to recognise that it has, for years, been involved with large and complex matters as well.

Having spent around 18 years with Chubb Group Insurance Company, Colin Biggers & Paisley’s Brennan has gained a great deal of experience as a purchaser of insurance legal services. “You are actually looking at the expertise that the lawyers can provide and you don’t necessarily look at the firm itself,” says the special counsel. “You focus on the firm that has the best expertise to offer the insurer or the insured… although [insurers] are looking at [low] rates, those dealing with [more complex cases] tend to accept that they have to pay a higher rate.” ALB

Australasian Legal Business ISSUE 8.4

Firm Profile | India 09 >> ALB SPECIAL FEATURE REPORT| insurance

Moray & Agnew

NATIONAL INSURANCE FIRM MORAY & AGNEW CONTINUES ITS STRONG GROWTH Superior client service, innovative client-focused technology and strong leadership saw Moray & Agnew’s revenue increase by 11.5% in 2009. New instructions were up 12.5%, fee-earner numbers up 20%, partner numbers up 15%.

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n difficult times professional headcount has increased across Moray & Agnew’s five offices. In particular the Brisbane and Melbourne offices grew by 37% and 12% respectively.

Moray & Agnew has built a strong reputation for handling complex insurance work spanning advice on policy, regulatory and legislative matters, and high-value and complex litigation. The firm’s clients include Australian and international insurers, boutique insurers, brokers, underwriting agencies, blue-chip self-insured corporates and government entities.

In its 2010 review Chambers & Partners highlighted: “The firm impresses clients with their high-quality advice and cost-effective manner”.

Changes in client requirements Moray & Agnew has anticipated and adapted quickly to changes in client demand. Prior to the global financial crisis (GFC) the firm handled many liability matters arising from construction issues.

Post GFC financial industry professional indemnity and directors and officers claims became prominent. Financial collapses and class actions also produced insurance related work from its clients.

Greater insurance and finance industry regulation has resulted in an increase in the firm’s regulatory compliance work from clients. Moray & Agnew has also acted in the politically sensitive areas of financial loss claims through its substantial practice in matters involving Financial Ombudsman’s Service (FOS).

National Contacts GEOFF CONNELLAN PARTNER Office – Sydney PH: (02) 9234 4506 E: gconnellan@moray.com.au

Our experience Moray & Agnew’s focus on what it does best ‘insurance law and litigation’ saw its 165 insurance lawyers manage a large number of complex governance, compliance and litigation matters.

Recent matters include: • successfully registering and obtaining an insurance licence for French insurance giant AXA • acting in a $150m class action arising from the collapse of Pan Pharmaceuticals • complex insurance coverage advice arising out of corporate collapses including Lehman Brothers (Australia) Limited, Lift Capital, Opes Prime and Storm Financial • acting for an insurer involved in one of the first claims arising out of investments in USA toxic loans where losses exceeded $10 million.

SUZANNE WALLACE PARTNER Office – Sydney PH: (02) 9234 4536 E: swallace@moray.com.au

BILL PAPASTERGIADIS PARTNER Office – Melbourne PH: (03) 8687 7358 E: bpapastergiadis@moray.com.au

SIMON LANG PARTNER Office – Brisbane PH: (07) 3225 5915 E: slang@moray.com.au

AREAS OF EXPERTISE • • • • • • • • • • • •

Regulatory compliance and risk Policy advice, drafting and interpretation Directors and officers liability Class actions Medical negligence Marine insurance Life and disability insurance Product liability Professional indemnity Reinsurance Construction and all risk Builders warranty

Sydney

•

Melbourne

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• • • • • • • • • • •

• Brisbane • www.moray.com.au

Coronial inquests and inquiries Catastrophic accident claims Compulsory third party Workers compensation Captive insurers / self insurers Dust and toxic tort litigation Property damage Public liability Sports liability insurance Travel insurance Bloodstock insurance

Canberra

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ANDREW MULLER PARTNER Office – Canberra PH: (02) 6210 4205 E: amuller@moray.com.au

PETER UTIGER PARTNER Office – Newcastle PH: (02) 4911 5412 E: putiger@moray.com.au

Newcastle

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FEATURE | litigation >>

dispute Beyond

Unpredictable times can breed unpredictable workflows.

ALB speaks with some leading litigation lawyers to find out how their practices have been faring

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unning a law firm has always been about the art of managing an unpredictable workflow, and there is no better case in point than litigation and dispute resolution.

Despite the reputation for being a counter-cyclical practice, there are still varying reports as to the amount of disputes work that is flowing through to firms.

One of the more high-profile litigation practices, that of Clayton Utz, is a case in point. The practice grew by 17% in FY2009 as a result of several large cases coming to a head, but FY2010 has been somewhat quieter by comparison. Nonetheless, the firm has several matters in the pipeline – which chief executive partner David Fagan says is likely to keep the team busy in coming months.

Law firms are pondering the contrast between the current disputes environment and that of earlier recessions. “It hasn’t been a repeat of the early 1990s. Banks have been more measured in managing their exposure and have been careful not to put people into receivership,” says Mallesons Stephen Jaques partner Roger Forbes.

“They’re sensitive to the impact on asset prices and the fact that if they force the borrowers’ hand they may not get their money back.”

Blake Dawson’s Ashley Wharton agrees, adding that the reluctance to litigate seems to be a broader corporate 76

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FEATURE | litigation >>

trend. “[Corporates] view litigation with diffidence because of the intensity, cost and executive time it absorbs – they would rather be devoting management time to core business issues.” The result is an increased focus on advisory and alternative dispute resolution work for law firms.

While the true post-GFC pattern may not emerge for another 12 to 18 months, the consensus is that the disputes environment has changed for good. While the epic proceedings between the Bell Group and multiple banks in Western Australia set Gavin Vallely a new benchmark for Holman Fenwick protracted litigation last year, few are expecting this case to set a trend for future disputes.

To the contrary, experts are largely of the view that there will be less, rather than more, mega-litigation. In contrast to previous recessions, major actions by

liquidators will be the exception rather than the rule. These are trends which may have implications for firm identity, as law firms which have traditionally been known for their litigation expertise may need to gravitate away from this focus in the long term.

But firms such as Holman Fenwick Willan may prove such talk to be premature. Dispute-related work is a key segment of the firm’s practice and it has experienced very strong growth over the past three years. The firm opened its doors in Australia in 2006 with ten lawyers, and had expanded its numbers to 24 prior to the GFC. Now the firm has over 30 lawyers.

However, partner Gavin Vallely points out that Holman’s growth is not simply GFC-related – continuing strong growth in the offshore oil and gas sector in WA, for example, has generated disputes of its own. Supply and procurement issues, competition for use of assets such as oil rigs and parties attempting to terminate contracts to take advantage of a rising market are also examples of disputes

“Victoria last year expanded the definition of ‘domestic partner’ in the Wills Act, so that the class of person that can claim an entitlement has increased. So we’re expecting an increase in disputed estates” www.legalbusinessonline.com

Andrew Blogg

Aitken Partners 77

FEATURE | litigation >>

“The client might be Australiabased, but find it is easier and cheaper to deal with us [internationally]. They find we can do the work as well as a US or UK firm” Roger Forbes

Mallesons Stephen Jaques

which are characteristic of a healthy market, rather than an imploding one.

Class actions and regulator actions

The advent of litigation funders such as IMF and plaintiff law firms such as Maurice Blackburn has given rise to a new breed of more sophisticated and aggressive class actions. The causes may vary, but actions under Pt IV or V of the Commonwealth’s Trade Practices Act 1974 are prevalent. Blake Dawson’s Wharton says that the jury is still out on whether class actions will retain their present popularity – there are some aspects of the process, such as proving causation, which are still attended with uncertainty.

It would be easy to assume that the bigger players such as Mallesons Stephen Jaques always act for the defendant. However, Mallesons has acted for institutional shareholder plaintiffs such as AMP and Colonial Mutual. Such shareholders may choose to participate in the class action or begin their own. A high-profile example of the latter course is the decision

by Cadbury-Schweppes, as it was then known, to launch its own action against Amcor over anti-competitive conduct. Mallesons represented Cadbury in that case.

While companies may be less keen to sue each other there are some types of disputes, like taxation, where they are still likely to stand their ground.

“Many companies are still willing to go to court if that’s what it takes,” says Blake’s Wharton. The ACCC and ASIC are also major players, although ASIC’s alleged bungling of litigation has attracted some criticism of late.

“ASIC suffered a bit last year, but you win some and lose some – they continue to be pretty active,” says Mallesons’ Forbes. “A fair bit of this work is GFC-related.”

A number of matters are known to be under Ashley Wharton ASIC investigation and Blake Dawson more announcements in this space are expected to be forthcoming.

International arbitration

Firms are attracted to the prospect 78

of luring international disputes to Australia for arbitration. It is clearly seen as a growth area, although it is uncertain whether this potential is based on actual client demand, or simply a desire by firms to expand and diversify their business. And even if Australia is not the venue for arbitration, there is no reason why local firms cannot assist their clients offshore.

Mallesons has invested some effort into developing this capability and has represented clients in diverse jurisdictions across Europe and Asia.

Roger Forbes Disputes over contracts Mallesons Stephen involving the supply Jaques of iron ore and coal have been particularly prevalent of late. “The client might be Australia-based, but find it is easier and cheaper to deal with us [internationally],” says Roger Forbes.

“They find we can do the work as well as a US or a UK firm.”

Experience in international disputes has clearly been a major factor in the ascendancy of Holman Fenwick Willan.

Again, defaults under commodities contracts, particularly into Asia, has been the trigger for a chain of disputes relating to transport. “Under CFR sales, the Australian exporter enters into an agreement with a ship operator and, following a default under the sale contract, is left stranded with chartered tonnage and no cargo that requires shipment,” explains Holman’s Vallely. “The ship operators may have also chartered from each other, so the whole thing spirals, you end up with parties invoking financial hardship provisions, force majeure and so on.

And obviously, the default under the commodities contract itself gives rise to work on its own.”

SME and private client space

The experience of disputes practices in the SME and private client space has not been dissimilar from that in the larger-scale commercial area. Aitken Partners managing partner Andrew Blogg says that the past six months have been “not absolutely flat out, but still ticking along.” He says that Australasian Legal Business ISSUE 8.4

FEATURE | litigation >>

“[Corporates] view litigation with diffidence because of the intensity, cost and executive time it absorbs – they would rather be devoting management time to core business issues” disputes work has increased, but not in line with traditional counter-cyclical expectations.

Blogg contrasts the present situation with the last recession in the 1990s, when he says a new file would come across his desk “every couple of days” without him soliciting it. While his current practice services a different set of clients and is not directly comparable, he says that anecdotal evidence indicates that practitioners are not seeing the same level of work that they did following the previous recession. Like his colleagues in larger firms, Blogg has noticed that clients such as banks have refined their operations and are more prepared to manage distressed debt, rather than resorting to litigation or mortgagee sales.

Harry Snow of Swaab Attorneys is another practitioner who has found that the GFC has not delivered the workflow that previous recessions did.

“There has been an upswing this time, but not as much as expected,” he says.

Snow nominates shareholder disputes, insolvency matters and ASIC litigation as the key drivers at the firm’s disputes practice at present.

Aitken Partners’ Blogg says that property disputes, such as disputes between partner developers involving “off-the-plan” buyers, are also on the rise, while heavy government investment in infrastructure has had the unintended effect of prompting valuation disputes associated with the compulsory acquisition of land. Family disputes are also prevalent.

“Victoria last year expanded the definition of ‘domestic partner’ in the Wills Act, so that the class of person that can claim an entitlement has increased. So we’re expecting an increase in disputed estates. People are also living longer so there are more applications for guardianship,” explains Blogg. www.legalbusinessonline.com

Ashley Wharton

Blake Dawson

Practice matters

In recent years the courts have introduced new measures to expedite processes. These include the introduction last year of a new specialist Commercial Court in the Supreme Court of Victoria, which aims to have trials commenced no later than nine months after the date of issue.

In a similar vein, the Federal Court’s ‘fast-track’ list seeks to limit the time from commencement of a proceeding to the receipt of judgment to eight months at maximum.

Mallesons’ Forbes says that he can see both the pros and cons of the new initiatives. “The problem is that the new measures impose incredible time frames and it is possible to incur huge amounts of cost – you have to really throw bodies at it [to make the deadlines]. On other hand, the prospect of actually going to trial does sometimes encourage settlement – it focuses the mind.” ALB

79

MARKETDATA DATE| M&A | M&A MARKET >>>>

In association with

M&A TRANSACTIONS AND STATISTICAL ANALYSIS Top 10 Announced Deals - Australasia (13 March, 2010 - 9 April, 2010) Announcement Date

Target Company

Target/Seller Legal Advisor

Bidder Company

Bidder Legal Advisor

30-Mar-10

AXA Asia Pacific Holdings (Asian businesses)

Advising seller: Allens Arthur Robinson; Mallesons Stephen Jaques

AXA SA

Freehills

30-Mar-10

AXA Asia Pacific Holdings Limited

Freehills; Mallesons Stephen Jaques

National Australia Bank Limited

Allens Arthur Robinson

3,891

22-Mar-10

Arrow Energy Limited

Gilbert + Tobin

Consortium comprising Royal Dutch Shell and Petrochina

Allens Arthur Robinson; Blake Dawson

3,650

23-Mar-10

CraFarms Limited (Certain assets)

Natural Dairy NZ Holdings Limited

Knight Coldicutt

17-Mar-10

Corporate Express Australia (41.4% stake)

Staples Incorporated

Corrs Chambers Westgarth

28-Mar-10

Shell New Zealand Limited (Distribution and retail businesses)

31-Mar-10

Interleasing (Australia) Limited

26-Feb-10

Clear View Retirement Solutions; and MBF Life

Baker & McKenzie

Seller Company

Deal Value (AUDm)

AXA Asia Pacific Holdings Limited

9,400

CraFarms Limited

1,151

535

Aotea Energy Limited

Shell New Zealand Limited

395

Advising seller: Clayton Utz

McMillan Shakespeare Limited

GMAC Australia Financial Services

208

Advising seller: Freehills

MMC Contrarian Limited

BUPA Australia Health Pty Limited

195

Shell New Zealand Limited

149

Baker & McKenzie; Henry Davis York; Advising financial advisor (Commonwealth Securities): Allens Arthur Robinson

28-Mar-10

New Zealand Refining Company (17.14% stake)

Aotea Energy Limited

6-Apr-10

Gloucester Coal Limited (12.3% stake)

Noble Group Limited

Notes:

127

Based on announced deals, including lapsed and withdrawn bids, from 13 March 2010 to 9 April 2010•Based on geography of either target, bidder or seller company being Australasia•Includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from table include property transactions and restructurings where the ultimate shareholders' interests are not changed•League tables are ranked by volume•Q1 10 * = 1 January 2010 to 9 April 2010

League Table of Legal Advisors to Australasian M&A (Jan 01, 2010 - Apr 9, 2010)

League Table of Financial Advisors to Australasian M&A (Jan 01, 2010 - Apr 9, 2010) Value (AUDm)

Deal Count

13,933

9

UBS Investment Bank

4,240

5

3

Goldman Sachs

3,145

5

7

4

JPMorgan

15,292

4

15,419

6

5

Deloitte

2,026

4

160

6

6

KPMG

577

3

98

6

7

Ernst & Young

Gilbert + Tobin

4,500

4

8

9

Blake Dawson

2,091

4

10

Baker & McKenzie

866

4

Rank

House

1

Freehills

2

Clayton Utz

3

Mallesons Stephen Jaques

4

Norton Rose

5

Allens Arthur Robinson

6

DLA Piper

7

Minter Ellison

8

Value (AUDm)

Deal Count

Rank

14,451

14

1

House Macquarie Group

3,322

10

2

13,668

9

289

62

3

Nomura Holdings

13,291

2

9

Deutsche Bank

11,498

2

10

Morgan Stanley

3,785

2

Australasian M&A Activity - Quarterly Trends 200

80,000

180

70,000

140

50,000

120

40,000

100 80

30,000

60 20,000

40

10,000 0

80

Number of deals

Value (AUDm)

160

Value (AUDm) Volume

60,000

20

Q1 03

Q2 03

Q3 03

Q4 03

Q1 04

Q2 04

Q3 04

Q4 04

Q1 05

Q2 05

Q3 05

Q4 05

Q1 06

Q2 06

Q3 06

Q4 06

Q1 07

Q2 07

Q3 07

Q4 07

Q1 08

Q2 08

Q3 08

Q4 08

Q1 09

Q2 09

Q3 09

Q4 09

Q1 10

Q2 10*

0

Australasian Legal Business ISSUE Australasian Legal Business ISSUE 8.48.4

MARKET DATA | capital markets >>

EQUITY CAPITAL MARKETS TRANSACTIONS LIST Australia, New Zealand Mar 21-Apr 17 NB: Does not include transactions valued at less than than USD10m, best efforts transactions and private placements Issuer

Proceeds (USDm)

Issue date

Currency

Bookrunner(s)

Sector

AUSTRALIA Mirvac Group Ltd

324.3

07/04/10

AUD

Merrill Lynch (Australia) Ltd, UBS Australia Ltd

Real Estate

Western Areas NL

113.0

26/03/10

AUD

UBS Australia Ltd, Macquarie Equity Capital Mkts

Materials

Perseus Mining Ltd

79.0

12/04/10

CAD

Cormark Securities Inc

Materials

Gerard Lighting Group Ltd

78.9

06/04/10

AUD

Austock Corporate

Industrials

Ausdrill Ltd

56.8

29/03/10

AUD

Argonaut Securities Pty Ltd, Patersons Securities Ltd

Industrials

MMC Contrarian Ltd

55.8

26/03/10

AUD

Commonwealth Securities

Financials

Beadell Resources Ltd

52.4

01/04/10

AUD

Macquarie Capital Partners LLC

Materials

Devine Ltd

50.0

22/03/10

AUD

Goldman Sachs JBWere Pty Ltd, RBS Morgans Ltd

Industrials

Vantage Goldfields Ltd

27.9

13/04/10

AUD

Shaw Corporate Finance Pty Ltd

Materials

FlexiGroup Ltd

23.4

23/03/10

AUD

JP Morgan Australia Ltd, UBS Australia Ltd

Financials

Adamus Resources Ltd

20.0

06/04/10

AUD

Patersons Securities Ltd, Helmsec Global Capital Ltd

Materials

Finbar Group Ltd

18.8

25/03/10

AUD

Bell Potter Securities Ltd

Industrials

Select Harvests Ltd

15.9

01/04/10

AUD

Bell Potter Securities Ltd

Consumer Staples

Endocoal Ltd

15.8

06/04/10

AUD

Helmsec Global Capital Ltd

Materials

Metminco Ltd

14.0

29/03/10

GBP

Daniel Stewart

Materials

MC&E Ltd

12.6

14/04/10

AUD

Argonaut Securities Pty Ltd

Energy and Power

Source: Thomson Reuters

DEBT CAPITAL MARKETS TRANSACTIONS LIST Australia, New Zealand Mar 21-Apr 17 Issuer

Proceeds (USDm)

Issue date

Currency

Bookrunner(s)

Sector

AUSTRALIA National Australia Bank Ltd

1,358.4

25/03/10

AUD

National Australia Bank

Financials

Westpac Banking Corp

1,000.0

31/03/10

USD

JP Morgan

Financials

Commonwealth Bank of Australia

756.4

07/04/10

GBP

Barclays Capital Group, Commonwealth Bank of Australia, RBS

Financials

Brambles USA Inc

749.6

24/03/10

USD

Bank of America Merrill Lynch, Barclays Capital, JP Morgan

Industrials

Series 2010-1 SWAN Trust

562.5

24/03/10

AUD

Commonwealth Bank of Australia, Royal Bank of Scotland (AUS)

Financials

Westpac Banking Corp

532.5

16/04/10

USD

Barclays Capital

Financials

Commonwealth Bank of Australia

494.6

01/04/10

CAD

RBC Capital Markets

Financials

NTTCorp

467.3

15/04/10

AUD

ANZ Banking Group

Government and Agencies

CNH Capital Australia 2010-1

324.3

07/04/10

AUD

ANZ Banking Group

Financials

National Wealth Management

321.5

23/03/10

AUD

National Australia Bank

Financials

Westpac Banking Corp

276.3

23/03/10

EURO

BNP Paribas SA

Financials

Illawarra Series 2010-1 RMBS

271.2

26/03/10

AUD

Westpac Banking

Financials

Dexus Finance Pty Ltd

168.0

15/04/10

AUD

ANZ Banking Group, Commonwealth Bank of Australia

Financials

Commonwealth Bank of Australia

100.0

13/04/10

USD

RBS

Financials

Contact Energy Ltd

71.6

09/04/10

NZD

ANZ Banking Group (NZ)

Energy and Power

ANZ Banking Group Ltd

70.2

08/04/10

AUD

RBC Capital Markets

Financials

Westpac Banking Corp

61.0

08/04/10

SGD

BNP Paribas SA

Financials

National Australia Bank Ltd

50.0

22/03/10

USD

Bank of America Merrill Lynch

Financials

Commonwealth Bank of Australia

50.0

23/03/10

USD

Morgan Stanley

Financials

Westpac Banking Corp

45.9

25/03/10

AUD

TD Securities Inc

Financials

Bananacoast Credit Govt Gtd

36.0

26/03/10

AUD

UBS Investment Bank

Financials

Bank of Queensland Ltd

10.1

01/04/10

AUD

RBS

Financials

247.1

22/03/10

NZD

Bank of New Zealand, Westpac Institutional Bank

Government and Agencies

21.4

16/04/10

NZD

ANZ Banking Group

Government and Agencies

NEW ZEALAND Auckland City Council Christchurch City Council Source: Thomson Reuters

www.legalbusinessonline.com

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