Property held by insolvent company brief summary as per Re PBS Building (Qld) Pty Ltd.^[1]

In Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (‘Carter Holt’) it was held that a property on trust by an insolvent company or individual would be normally excluded from the division between creditors.^[2] A primary purpose of the liquidator was to have regard to ‘the benefit of the personal estate of the bankrupt or insolvent person’.^[3] Notably, the Court has acknowledged that the trustee may benefit personally from a trust under the right of exoneration.^[4] Based on the Australian Securities and Investment Commission v Marco (No 9) case,^[5] the applicant in Re PBS Building (Qld) Pty Ltd expressed that a ‘stand-alone right of entitlement’ is not limited under the Corporations Act in regards to property exceptions and may under the IPS extend to trust assets.^[6] This proposition was rejected due to the proposed construction was not supported in the BIF Act and the terms in the BIF Act strictly denies administrators or liquidators the right of exoneration.^[7]

[1] Re PBS Building (Qld) Pty Ltd [2024] QSC 108 (‘PBS Building’).

[2] Ibid [49]; (2019) 268 CLR 524 (‘Carter Holt’).

[3] Carter Holt [27] per Kiefel CJ, Keane and Edelman JJ.

[4] Ibid [28].

[5] (2021) 399 ALR 735.

[6] PBS Building  (no 1) [49].

[7] Ibid [50, 51].

Writing email correspondence and communicating with FCFCOA officers can become confusing as it can feel like it is ‘everchanging’. I did not even realise that I had made a mistake until GCDLA committee member Guy told me. Guy further told me that this is a mistake that even well-versed lawyer’s struggle with, which can result in error in correspondence in emails and in the court room.

There are 5 types of FCFCOA judicial officers, and this list can be used as a guide to double check correspondence or as a refresher before heading to Court.

1. Deputy Registrars;
2. Judicial Registrars;
3. Senior Judicial Registrars;
4. In division 2 of the FCFCOA: Judges   (referred to as His Honour Judge Middleton, or Her Honour Judge Firth for example);
5. In division 1 of the FCFCOA: Justices (referred to as the Honourable Justice Carew (and thereafter as Her Honour), or the Honourable Justice Baumann (and thereafter as His Honour), for example).

If you are unsure whether you are addressing an individual correctly ask your colleagues and if you are told about a mistake you have made, take it with grace. The only way you will know if a mistake has been made is if you have been told and what better way is there to improve?

What are some other common errors that new practitioners and veteran lawyers make? Email info@gcdla.com.au and let us know.

Author: Lara-Jane Mackie

To succeed in law school is not shown only in a reflection of good grades. All students want to do well yet the truth is law school for the most part will only teach you the theory and basics; however, there are many other attributes and opportunities available to students to aid their success:

1. Networking: Build connections with peers and industry professionals.
2. Work: Gain practical skills earlier. This doesn’t have to be strictly legal any jobs that involve interpersonal, administration or communication skills can be valuable.
3. Do legal work experience: Experience the reality of working in a law firm.
4. Build a social media presence: A social media presence doesn’t mean that you need to create an Instagram or Facebook account. LinkedIn is a great way to build a professional network and will allow you to connect and message those already in the profession.
5. Gain Microcreditionals: Microcreditionals generally involve low to no costs and are a great way to build up the resumé and broaden your skillset. Tafe and Forage are excellent service providers to get you started.
6. Ask Questions: Everyone in the legal profession have started in the same position as you have. Asking questions is a great way to show initiative, ambition and develop an understanding as to what to expect in the industry.
7. Practice: Any skill gets better with practice. Practical sites like Forage are a good way to practice what you are learning in your studies with scenario questions and to enhance your skills.
8. Maintain relations with teachers and peers: Your teachers and peers are valuable resources to keep in touch with and can help you adjust into the profession. Further, it is not uncommon to recommend clients to other legal professions if the services they require is not your specialisation.
9. Keep an Open Mind: Don’t go into law school or the profession thinking you know everything… you don’t. Much like your teachers will have different opinions on how to do things so will your colleagues. There is no such thing necessarily as the ‘correct’ way to do something and don’t close off if your idea is wrong or if someone has an idea which is better. Learn from each other… even a veteran legal professional can still learn a trick or two.
10. Read: Students tend to get sick of reading, after spending most of their semester going through case law and textbook… BUT reading helps you absorb knowledge and learn, not to mention it is a crucial part of legal profession. Think about all the contracts and agreements you will need to look through! Spend 10 minutes a day reading anything, and brainstorm how would you improve it? Would you have done something differently? Are there any grammar mistakes?

Author: Lara-Jane Mackie

Terri Mottershead presented at the 2024 QLS GCDLA Symposium with a topic called : AI in legal practice – the challenges, opportunities and everything in between!

These are my thoughts and takeaways from Terri’s presentation.

Top thoughts about AI

• Starting at the beginning, what is GenAI ? It is Generative Artificial Intelligence, think ChatGPT.
• There are lots of different types of AI, try them all because different AI suits different tasks.
• Technology is going to impact our business for all of us, big and small.
• Do not assume AI can or will solve business problems.  First define the problem, look at what the objectives are, and then look for AI to enable or support the solution.
• Clients are expecting us to use AI more than we might be.

It is less about what you know and more about how you apply it.

How AI is being used in law practice:

• Simplify / summarised documents
• Translate documents
• Analysis / document reviews
• Information extraction (e.g. document assembly)
• Content creation (e.g. blogs, press releases)
• Insights/predictions (e.g. analytics, looking at trends and data)
• Compliance and risk management

Be Aware

• Do not suffer from AI fatigue and burnout.  Technology and AI is a continually changing process. You need to keep up to date but be aware of burnout.
• In terms of the legal market, there will be those that do not use tech, and there will be those who are using it and using it well. 

The Challenge

• Terri encouraged us to try taking this challenge: design an AI tool that will replace you and the services, solution or products that your firm delivers.  You will find that what is left is your competitive advantage, i.e., the human component. AI can only take us so far, lawyering will always involve a human element.

 
Final Tips

•  Look at QLS resources https://www.qls.com.au/Practising-law-in-Qld/Practice-Support-Resources/Technology-Innovation/Artificial-intelligence
• Take AI from a tool to a teammate

 
Author: Joelene Nel
July 2024

We are charged by our ethical rules and our fiduciary duties to act in our client’s best interests. We are their advocates, and they are our bread and butter.

But it is not client advocacy at all costs, is it?

We’ve all come across someone who takes every point, fights every suggestion and never concedes an inch. We’ve also all seen what that does to our client’s invoices.

The reality is what is in the best interests for our clients is the efficient resolution of the real issues in dispute. It keeps costs down; it lets people move on emotionally and it focuses on the areas that will deliver maximum value to our clients.

We are also charged by our ethical rules to be honest and courteous in all of our dealings and, in a lesser-known rule (rule 34 ASCR), to avoid tactics that are primarily designed to frustrate or embarrass another person (including another solicitor).

Less than courteous dealings take innumerably varied forms in terms of tone, actions and words used.

The Court Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 found that the solicitor’s tone in communicating with prosecutors formed part of a series of incidents that warranted their name from being removed from the roll of lawyers.

LSJ Media, the online journal of the NSW Law Society, published an article in 2022 discouraging describing our colleagues as disingenuous, mischievous, egregious, misleading, specious, inept (or demonstrating ineptitude).

Hearsay published an article in 2023 commenting that swamping an opponent with numerous letters or emails without a valid reason may, itself, constitute discourteous behaviour. Swamping a colleague with phone calls necessarily falls into the same category. Depending on the content of the communications, the need for repeated (and perhaps unanswered) communications in short succession and the surrounding context, such communications may be considered conduct primarily designed to frustrate another person (contrary to rule 34).

A properly organised solicitor is, the majority of the time, likely to need to send only one unanswered communication (excluding well-spaced follow-ups) insofar as a single matter or topic is concerned which usually does not need a response for several days (allowing for all practitioners having various demands on their time).

Whilst the value of courteous and civil communication has been extolled previously, the simplest expression may be “you catch more flies with honey than vinegar”.

Author: Ben O'Brien

Every day as Lawyers we engage in conflict and for this reason it is important that we continue to monitor not only our mental health, but those of our colleagues.

Lawyers are more prone to poor mental health and burnout than many other industries because of the stressors and pressures associated with the work we undertake together with the long hours and tight deadlines.

Often as Lawyers, we take on our client’s matters, consuming ourselves with exceeding expectations, but forget to take care of our own mental health. It is important to be aware of the signs of trauma so that we can identify it in ourselves and our colleagues early on to avoid burnout and poor mental health. Some of the signs to look out for are as follows:

(a)        Being unable to ‘switch off’ from work;
(b)        Feelings of doom and gloom when you think about work;
(c)        Questioning your own skills and competence; and
(d)        Being detached and insensitive to client’s needs.

If you or one of your colleagues are experiencing any of the above signs, it is important to enlist professional help early. Some coping strategies for someone experiencing poor mental health or burnout are as follows:

(e)        Speaking with a professional at an early stage;
(f)         Talking to your colleagues to de-brief about matters that are concerning you;
(g)        Speaking with you Firm to assist with managing your workload if you are struggling;
(h)        Carefully managing boundaries between your work and home life so that you have a place of rest;
(i)          Taking frequent breaks (even if it is simply a weekend away);
(j)          Engaging in regular exercise and well-being activities;
(k)         Eating a well balanced diet;
(l)          Ensuring you get a good night’s sleep.

The GCDLA is focused on assisting Lawyers to manage their mental health and well-being by hosting various events such as Yoga which was held at the end of May 2024 and Wellness by the Water, which is coming up in October 2024. We also have a mentoring program which allows junior Lawyers to be supported by more senior Lawyers, so that they can seek assistance if they are struggling in any way.

Author: Ailsa Day

• It is the bane of every employee, lawyer or recruiter’s existence when preparing employment advertisements. As they say, ‘the devil is in the detail’.

  Attention to detail has been defined as thoroughness in accomplishing a task through concern for all the areas involved, no matter how small. We imagine you arere all familiar with the need for and the consequences of a lack of attention to detail. We don’t propose to go into that here.

  But how do you improve your attention to detail?

  Here are 4 practical tips to improve your attention to detail:

• 1.         Read and re-check your documents - Sometimes the simplest solution is the most practical. There is no substitute for hard work and even in documents filed in Court, mistakes appear. Whilst there is no guarantee that reading it 5 times will make it perfect, the document is likely to be 40% better than after reading it 3 times.

• 2.         Read the document you are referring to - Every time you refer to another document in your communications including emails, letters or submissions make sure to have it open in front of you. This should be applied vice versa as well, if your opposition refers to a document open it and have it in front of you. You will never misquote a document again and you will pick up every time your opponent does, which could make all the difference.

• 3.         Look up the relevant section – Even if you have read it 50 times that day, can perfectly quote it, or you can see it when you close your eyes, still look up the section whenever you or another person refers to it. No one’s memory is perfect, and you will avoid silly mistakes in exchange for an extra 40 seconds of effort.

• 4.         Double check the document you are enclosing - Open the document as it is attached to your email or before sending in a letter. A quick scroll through a document to be enclosed within a letter or attached to an email will pick up any formatting errors, subject line errors, lack of a signature and any one of 146 possible mistakes. Further, you can then be certain of what will be received.

Most of the time these things will not affect the outcome of a matter in the real sense but one day they may, and you will not find out until after the fact. Therefore, do not make the mistake of taking a short cut because it may save time. Your client will appreciate it being done right the first time, rather than there being a mistake that may not be found until it is too late.

Author: Ben O'Brien

A career in law is a marathon not a sprint. If you're interested in reading my ideas that might help you create a professional network to support your professional (and personal) wellbeing and development then read below.

STEP 1 – BE AUTHENTIC

Networking is not meant to be hard; it is meant to be enjoyable and beneficial. Think about who you are as a person and who you are as a lawyer, the 2 sets of values should align.

Create a profile so that people can find you and which you can use to connect to other people in the industry who you might want to connect with. It is important to update your profile as your career progresses and your objectives change. LinkedIn is an example of a platform that you can use to connect and share your journey as lawyer.

STEP 2 – BE ACTIVE

Build your community of people. Your community can be people you meet at events, where you volunteer and/or work colleagues. They might be podcasters, bloggers and writers of articles that interest you. Social media is great for making connections as you have access to a wide network of people at your fingertips.

Attending in person events is also important. These can be through local community groups, business forums and of course, your local District Law Association. Don’t be afraid to go alone, introduce yourself to the hosts and tell people that you are new to networking or that group. People will usually go out of their way to make you feel welcome. 

STEP 3 – ASSESS

Time is our most precious commodity. It is important to reflect on how much time you are spending at in person events and social media networking. Are you building relationships with people who you feel will support you and you can learn from? Do you need to consider expanding your network into other areas? If there is no group in your area maybe create one.

Finally, I suggest that you build your network before you need it.

African Proverb

“If you want to go fast, go alone. If you want to go far, go together”

Author: Joelene Nel

The GCDLA’s mentoring program has been around for about 8 years now. It was started to assist Gold Coast Lawyers Achieving Development, which gave the program its name (“GLAD”).

The GLAD program is fantastic and has continued to evolve over time. This year, I joined the program as a “mentee”. You may ask ‘why would I join as a mentee despite starting my law career back in the last century (just... in 1999)’? The answer to that question is because I realized there is still so much I can learn from others.

In 2023, I started my own law firm which came with a massive learning curve and many new challenges. As a new business owner, it felt like I had entered a whole new universe. Having a sounding board to bounce ideas off (or to check if you’re heading in the right direction) is a godsend!

So, when applications opened for 2024 and the GLAD program needed more mentees, I instantly signed up and was lucky enough to be assigned Derek Cronin as my mentor. How lucky am I?!

Derek and I meet regularly for lunch and touch base with each other. The GLAD program has given me someone that I can reach out to when I need help, and who encourages me to push the needle forward.

For example, I didn’t have a website for my new business. I hadn’t really needed it to attract work since I had a steady stream of referrals (mostly from other lawyers who trust me to look after their injured friends, family, or clients). I was grateful for the support of the local legal fraternity in helping my fledgling firm get clients through the door. I was as busy as I wanted to be, so the website development was low on my priority list.

Derek helped me see the importance of having a website in a different light. He challenged me to avoid decision paralysis on picking a website developer, securing a logo and just get the website done. We also had frequent interesting discussions on lessons he had recently learned about how to write the website including the importance of tailoring your website to match your ideal client and audience while also showing your brand and personality.

Derek’s encouragement and mentoring served as an accountability measure. I shifted my focus on my priorities and got moving. I am now proud to say that I have a completed website that reflects me and helps people get to know me. It still needs some work, but it exists! Done is better than perfect! For those playing along, it’s www.tclegal.com.au.

So, if you’re a more “seasoned” lawyer and want to be involved in a structured but still pretty cruisy mentoring program and don’t want to feel like you’re imposing on another practitioner when you need a sounding board, I encourage you to consider enrolling in the GLAD program in 2025! I’m certainly glad I did.

Author: Anna Morgan

Director of Take Control Legal

The increasing demand and popularity for vaping across age groups have led the Government to begin taken new measures to restrict and deter individuals from vaping.[1] Vapes can still be purchased at pharmacy’s, however, individuals will now require a prescription.[2]

The new legislative amendments are provided under Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024, which has passed both houses on the 27 June 2024.[3] The bill seeks to amend the following legislation:

• ·      Therapeutic Goods Act 1989 (Cth);

• ·      Customs Act 1901 (Cth)

• ·      Industrial Chemicals Act 2019 (Cth)

• ·      Public Health (Tobacco and Other Products) Act 2023 (Cth).

The amendments to the Therapeutic Goods Act 1989 (Cth) include, s 41Q, s 41QA and s 41QB; which provides that it will be considered an offence to import, manufacture or supply vaping goods in Australia unless the person has gained consent from the Secretary under s 41RB.[4]

Further information regarding the Bill and the amendments that will be coming into effect can be found on the Parliament of Australia website under Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024.[5]

Author: Lara-Jane Mackie

[1] Sarah Swain, Daniel Jeffrey. (2024). ‘What is going on with Australia’s vaping laws?’. 9 News. <https://www.9news.com.au/national/vaping-laws-australia-new-vaping-laws-aim-to-stop-young-people-using-harmful-devices-explainer/5ed575aa-e9c2-4983-8740-737c701b6464>.

[2] Ibid.

[3] Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill (No 50) 2024 (Cth).

[4] Ibid.

[5] Ibid.