As lawyers, trainees and law students we should always strive to improve in our skillset, knowledge and attributes. There is always lots to learn in the legal professional!!
GCDLA's committee member Joelene Nel has created a list of the top 6 take aways from 2024's Meet The Judiciary event hosted by GCDLA, which resonated strongly with her.
This list was comprised after listening to the speeches of the judiciary members in attendance and these point could not have been stressed enough!
Key Takeaways
1. Be organised - this is evident in how you engage with the Court. The more organised and prepared you are, the better the impression you leave. 2. Be flexible - Take chances that might not seem to be directly in line with where you are heading. 3. Take work and yourself seriously, but not too seriously ;) 4. Make it easy for the Court to follow your submissions - e.g. prepare an index of exhibits, paginate and use headings. 5. Put your camera on when doing online Court appearances - the Judiciary like to see who is addressing them, just as if you were in Court in person. 6. For family lawyers - when preparing Parenting Orders, consider putting the Orders relating to respectful communication and non-denigration closer to the top. These concepts / orders are important in the post separation, co-parenting relationship.
Dear Members,
The GCDLA committee has been approached by the Southport Magistrates and District Courts Support Staff to check whether any practitioners are missing out on their (the Courts') outgoing general email communications. If you have not been receiving regular emails from the Courts please email GCDLA so as your email address can be informed to the Courts' Staff and their lists for practitioners seeking communications.
The email to use is: info@gcdla.com.au
The committee will then send the addresses to the Court for inclusion in their distribution list.
Many thanks and thank you to the Court staff for offering to assist in this fashion.
We were very pleased to welcome our cohort of commencing students in Orientation week with on campus events at the Gold Coast on Monday 17 February and at Nathan on Tuesday 18 February. Our students participated in information sessions, followed by campus tours, meeting their student mentors, lunch and a Q&A session.
We were then pleased to host all of our commencing students, from both the Gold Coast and Nathan, at an event held at the Banco Court on Friday 21 February, where students were welcomed to the legal profession as ‘legal professionals in training’.
The Honorable Justice Mullins welcomed the students to the court, while Dominic O’Sullivan QC welcomed them on behalf of the Bar Association, and President Luke Murphy welcomed them on behalf of the Queensland Law Society.
Students then heard from a range of our alumni about their many and varied careers. We had presentations from Erin Mitchell, Director at Potts Lawyers; Fiona Lubett, commercial barrister; Rikki-Jane Buckland, lawyer at Gold Coast Community Legal Centre; Dean Clifford Jones, Parole Board Queensland; Brad McNamara, now a lawyer but talking about working as a Judge’s Associate to a Court of Appeal Judge; James Kerr, in house legal counsel; and Dr Kate Van Doore on working as a legal academic. Students had lots of opportunities over morning tea and lunch to speak with all of our presenters, and many told us that they came away feeling very inspired about where their law degree might take them.
At Griffith Law School we not only teach our students what the law is but also to think critically about law and where it is or is not serving the cause of justice; and to use legal skills and knowledge to make a positive difference in the world.
We are extremely proud of our many wonderful alumni who are always keen to give back and to support and nurture the next generation of Griffith Law School students. They remain part of our Griffith Law School community and support the school in numerous ways for the benefit of our students, whether it is coaching competitions, mentoring students, or giving our students work experience or internship opportunities.
For me, one of the great privileges of being a law school academic, has been teaching and getting to know many fabulous Griffith Law School students and then following their brilliant careers after they graduate. We have alumni working as barristers, in law firms, in corporations, in government, international non-government organisations, all over the world. I was delighted to catch up with many of them at alumni events in Singapore and London last year.
There will be another excellent opportunity for all of our students to network with the legal profession at our “Meet the Profession” event at the Banco Court on 12 March.
Associate Professor Therese Wilson
Dean of Law and Head of School
Griffith Law School
Thank you to everyone who joined us at the first Gold Coast District Law Association mentoring breakfast for 2020.
Our mentors and mentees have now been paired up and have had an opportunity to meet each other at this first event, we are excited to learn, share and grow with each other this year.
The GCDLA mentoring program is called GLAD - Gold Coast Lawyers Achieving Development and we are all looking forward to building new relationships with fellow colleagues in our legal profession on the Gold Coast and developing our personal and legal skills.
GLAD is now in its 4th year having seen nearly 100 participants engage in the program.
We are grateful for the continued support of the Queensland Law Society in this initiative.
Who is your Silver Sponsor; Express Settlements….
Our Mission - ‘Providing Financial Breathing Space’
We work closely with our partner law firms in order for us to find the right solution for us to add value to both the firm and your clients financially. We offer funding solutions for Personal Injury and Compensation sector primarily, to also include, Family Law, Wills and Estates, including Property.
Our solutions for the funding of disbursements and outlays are:
Our PRE and POST Settlement Funding is a service we provide to your clients, to help relieve pressure at a time of great stress by providing financial breathing space.
Should you wish to find out more then please feel free to reach out to me at rscott@espresssettlements.com.au or give me a call on 0428 455 312.
We look forward to supporting the GCDLA and getting to know the committee and members over the coming months.
Many thanks – Rachel Scott - CEO
GLAD Mentoring Program
(Gold Coast Lawyer Achieving Development)
“Mentoring is a brain to pick, an ear to listen, and a push in the right direction.” — John Crosby
The value of mentoring cannot be underestimated.
In 2016, the Gold Coast District Law Associate began their mentoring program with 16 participants. By the end of our 2019 programme, 69 participants have been involved in our programme. In October 2019 we held an end of year workshop for our mentors and mentees with Melinda Fisher, talking about change, growth and leadership as we head into 2020.
GLAD offers a valuable opportunity for mentor senior practitioners to share their experience, knowledge and skill with mentee lawyers.
Our mentoring programme is free to members and the Queensland Law Society has supported our programme since 2016 by sponsoring the breakfast events which are held every second month. As the programme is free to members there is no barrier to involvement.
Those involved in our 2019 programme commented:
Mentees: “My mentor has assisted me with many queries, whether broad or specific, advised me on various approaches to dealing with emotionally charged clients, shed light on life outside law, and also provided me with valuable early law career advice.”
‘… really enjoyed the breakfast events and smaller tables so that you can rotate and meet other people in other practice areas’
What are you waiting for? Isn’t it time to join Glad 2020? Click HERE for mentors or HERE for mentees to express your interest.
The GLAD committee
Joelene, Erin and Kathy
Article by WORRELLS SOLVENCY & FORENSIC ACCOUNTANTS on 9 April 2019
During the course of bankruptcy administrations, one of the most frequently encountered asset protection structures are discretionary family trusts. It's a reasonably secure protection strategy in the event of bankruptcy because trust assets held by the bankrupt do not form part of the bankrupt's divisible assets and are not available for the benefit of creditors (section 116(2)(a) of the bankruptcy Act 1966.
And if the bankrupt was a beneficiary of the family trust, it will not make any distributions to the bankrupt as those distributions would likely become divisible assets or assessable income during the bankruptcy period.
However, a bankruptcy trustee has several powers and options to 'attack' a typical family trust or otherwise recover funds, which commonly include:
Existing Debts
Our initial investigations always involve obtaining the family trust's financial records, which we can obtain pursuant to section 77A of the Bankruptcy Act if the trust meets the definition of an associated entity. We review the records to establish if any outstanding debts or loans are owed to the bankrupt by the trust. This may include unpaid outstanding employee entitlements if the family trust operated a business.
Those financial records also assist in our investigations into the other potential claims discussed below.
Voidable Transactions
Commonly, the family trust assets comprise of assets or funds transferred from the bankrupt prior to the bankruptcy date. These include transfers of real property (often the family home shortly prior to commencement of a risky business endeavour), large cash payments, redirection of part of the bankrupt's ordinary wages or assignments of loans and debts to the trust.
If the bankrupt did not receive a commensurate benefit from such transactions, it may give rise to a potential 'undervalued transaction' or 'transfer to defeat creditors' claim against the family trust. Primarily, the transaction must mean the bankrupt received less than fair value for the transfers of the assets and the transaction occurred within the relevant time frames. If argued that those transfers were to repay and existing liability owed to the family trust, this could also potentially give rise to a preferential payment claim.
Orders in relation to controlled entities
Division 4A of the Bankruptcy Act is sometimes colloquially referred to as the "trust busting" provisions. Its purpose is to enable reveries where bankrupts have historically diverted personal assets or income to an entity that they control, such as a family trust. IT seeks to make available, for the benefit of creditors, the accumulation of assets in a trust or other structure that resulted from the bankrupt's efforts and exertions. Broadly, depending on specific circumstances, the elements to establish a Division 4A claim will generally include the following:
The Bankruptcy Act sets out the particular combination of elements that apply to establish a claim depending on the specific circumstances. If a valid claim exists, the courts can make orders to vest the interest in the asset in the bankruptcy trustee or for the controlled entity to pay a specified amount to the bankruptcy trustee.
The above examples are some of the more common investigations and recovery actions against family trusts; however, often other potential claims are available depending on the administration's specific circumstances.
It should also be noted that quite often, bankrupts hold the power to replace and appoint a new trustee. Throughout the years, we have been requested on many occasions to exercise that power to appoint a "friendly" trustee to distribute discretionary trust assets. The courts have held that the general power of appointment is not property that vests in a bankruptcy trustee pursuant to section 58 or 116 of the Bankruptcy Act (RE Burton: Wiley V Burton (1994) 126 ARL 557) and accordingly, that option is not available.
The Supreme Court has announced that there will be a 2 week sitting of the Supreme Court convened by his Honour Justice Boddice from 2 – 13 September 2019. Jane FitzGerald of French Quarter Chambers has recently met with his Honour and is pleased to report that he conveyed a desire on the part of the judiciary to work with us to promote the sitting and endeavour to make it as successful as possible. The callover for the sittings will be on 30 April 2019. Matters to be included in the callover are to be notified to his Honour’s Associated by 19 April 2019. Please read more on how you can assist in demonstrating the need for a Supreme Court Appointment on the Gold Coast.
by David J Renfrey on 3 Dec 2018
Introduction
The issue of procedural fairness, no matter what area of law, always looms as fertile ground for possible appeal. This possibility is perhaps even more heightened when a self-represented party is involved in proceedings.
The recent case of Nobarani v Mariconte [2018] HCA 36 is such an example. It provides compelling circumstances which drew the High Court of Australia (HCA) to unanimously find that the appellant had been denied procedural fairness, concluding a substantial wrong or miscarriage had occurred.
However, this case also highlights other potentially important issues for legal representatives which are worth consideration. In particular, whether or not the respondent’s case was developed in the context of a strategic approach and whether or not the respondent’s counsel had a duty to alert the trial judge to certain matters of process throughout the proceedings.
Pre-Trial Background
The appellant, Mr Nobarani, claimed an interest in the 2013 Will of the late Ms Iris McLaren that had been handwritten. The Will had been drawn up by the deceased’s solicitor and purportedly witnessed by a Ms R Parseghian and Mr C Yuanun.
As a result of the appellant’s challenge, he filed two caveats against a grant of probate. The respondent, Ms Mariconte, subsequently sought orders to have the caveats cease to be in force. Until 15 May 2015, the appellant’s preparation for the upcoming trial on 20 and 21 May 2015 had been limited to those proceedings [2]. Throughout the process, the respondent was represented by senior and junior counsel. The appellant was self-represented.
On 14 May 2015, just 3 business days before the trial, the trial judge held the first directions hearing. For the first time the respondent submitted the appellant’s caveats had lapsed due to time. At this point, the appellant was told the upcoming trial would be of the claim for probate. The judge directed the appellant to file and serve his defence to the statement of claim by 18 May 2015. That was within one clear business day. The judge also directed the appellant to serve any supplementary evidence he wished to rely upon that was in addition to affidavits he filed in his caveat proceeding.
However, the trial judge was not informed prior to making those directions that the appellant was not a party to the probate proceedings, or that the appellant’s affidavits had been filed only in connection with the caveat motion [3]. It is clear that counsel for the respondent did not draw these circumstances to the court’s attention at this point.
The Trial
Nonetheless, on the first day of the trial, 20 May 2015, the appellant was joined as a party to the claim. Having added the appellant as a defendant to her action by amending her statement of claim, she sought costs against him.
The trial judge described the appellant’s defence as “almost incomprehensible”. However, despite requests by the appellant for adjournments to call witnesses, read documents and call expert evidence, no adjournments were granted. Nonetheless, the trial judge proceeded on the basis that the appellant had put in issue by credible evidence: questions of execution, questions of capacity, questions of testamentary intention, knowledge and approval. As a consequence, these matters placed the onus on the respondent to address.
In relation to the caveat motion, respondent’s counsel argued firstly, they had expired, and secondly, the appellant had no interest that could support the caveats because the 2004 Will had not been proved. The trial judge was of a different mind given that the respondent had admitted to the 2004 Will. This in fact gave the appellant an interest in the earlier Will and, in turn, allowed him standing to challenge the 2013 Will.
The trial judge was ultimately satisfied of the respondent’s case, granting probate in solemn form of the 2013 Will and ordering the appellant to pay the costs of the respondent. His decision was handed down on 22 May 2015.
New South Wales Court of Appeal
The court noted that the appellant had a number of grounds on which he appealed but in essence, they boiled down to a denial of procedural fairness. The sub-grounds included: his inability to a long-time friend of the deceased, Mr Lemesle, as a witness or to rely on his affidavit; the trial judge’s failure to allow him an opportunity to cross-examine Ms Parseghian; the trial judge’s failure to allow him to call expert evidence, including his failure to allow the appellant time to issue subpoenas, with respect to the deceased’s eyesight; and the trial judge’s failure to give him an opportunity to be heard in relation to objections to his affidavit evidence.
Simpson JA concluded all but the last sub-ground noted above came about directly as a result of complaints arising from the last minute change to the issue to be decided at the trial held on 20 and 21 May 2015.
This notwithstanding, the majority of the Court of Appeal found in favour of the respondent. Ward JA considered that although procedural fairness had been denied, that denial did not deprive the appellant of the possibility of a successful outcome. Emmett AJA concluded the appellant appeared to have no interest in the validity of the 2013 Will.
Simpson JA, on the other hand, would have allowed the appeal as the appellant had been denied procedural fairness and that denial was a substantial miscarriage of justice.
Appeal to the High Court of Australia
The appellant argued the majority of the Court of Appeal erred by not ordering a retrial, concluding that the denial of procedural fairness could not have made a difference to the final result and that the appellant had no interest in the estate sufficient to challenge the 2013 Will.
In contrast, the respondent, by way of notice of contention, argued that there was no denial of procedural fairness, but if there had been, there was no substantial miscarriage of justice by reason of any such denial.
The HCA considered the question of when a new trial should be ordered and referred to s101(1)(a) of the Supreme Court Act 1970 (NSW). This provides the circumstances under which an appeal can be brought from a judgment of the Equity Division. Section 75A(10) provides that powers of the court on appeal include that the:
“Court may make….. any order….. which the nature of the case requires”.
However, this is subject to section 101(1)(a), Uniform Civil Procedure Rules (NSW) and, in particular, Rule 51.53(1) which provides:
“The court must not order a new trial on any of the following grounds:
a. Misdirection, non-direction or other error of law, b. b. Improper admission or rejection of evidence’ c. c. That the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury’ d. On any other ground, unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned.”
a. Misdirection, non-direction or other error of law,
b. b. Improper admission or rejection of evidence’
c. c. That the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury’
d. On any other ground, unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned.”
The HCA concluded that a denial of procedural fairness was indeed captured by the last of the circumstances of Rule 51.53(1).
Appellant entitled to new trial
The HCA determined in its reasons that the denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim. Moreover, the appellant’s adjournment applications were attempts to ameliorate those consequences [40].
The trial judge gave two reasons for denying the adjournments. First, he said the matter had been set down for hearing for some time and the applicant had been warned on 14 May 2015 that he needed to have all his evidence ready for the trial on 20 and 21 May 2015. Second, the trial judge said given the vagueness with which the applicant presented many of the procedural issues, and the disorder of his case, the court had no confidence that an adjournment would lead to his case becoming any more precise [41].
However, the HCA also noted the trial judge was unaware that the dates set down for hearing were only to be used for the caveat motion, and no directions had been given to the applicant in relation to take any further steps, including filing or service of documents [42].
The HCA identified 3 issues in the abbreviated timetable prior to trial that had consequential effects on the outcome.
1. The applicant was not able to cross-examine a significant witness as to the deceased’s mental and physical condition because he did not give notice to the other side within the short timeframe. This was compounded by the applicant’s inability to cross-examine a further witness to the 2013 Will whose address appeared to be that of a vacant building site.
2. The trial judge refused to take account of an affidavit from another witness because it was annexed to the applicant’s defence filed in opposition to the caveat motion, nor was the affidavit read and the witness was not subpoenaed or brought before the court.3. 3. Despite objections from senior counsel for the respondent, the appellant was given access to the solicitor’s diary for the period 5 to 10 December 2013. However, the trial judge gave him only “about one minute to decide what you are going to do next” and an application to have the diary considered by an expert was refused.
2. The trial judge refused to take account of an affidavit from another witness because it was annexed to the applicant’s defence filed in opposition to the caveat motion, nor was the affidavit read and the witness was not subpoenaed or brought before the court.3.
3. Despite objections from senior counsel for the respondent, the appellant was given access to the solicitor’s diary for the period 5 to 10 December 2013. However, the trial judge gave him only “about one minute to decide what you are going to do next” and an application to have the diary considered by an expert was refused.
The HCA concluded that while each of these factors alone may not have amounted to a denial of procedural justice, together, along with the abbreviated timeframe for preparation, such injustice had been done [44].
The respondent’s counsel argued the appellant had known for months of the hearing for the caveat motion but the HCA rejected this saying there is considerably less preparation involved in such a hearing compared to that of a trial. Moreover, it was reasonable for the appellant to proceed on the assumption that he would have success in the caveat hearing and therefore there was no need for him to prepare for a trial [45].
The HCA further concluded that the denial of procedural fairness to the appellant amounted to a “substantial wrong or miscarriage.” The appellant was in fact denied the possibility of a successful outcome [46]. Importantly, the HCA stated that:
“in this case, no legal representative would reasonably have been refused an adjournment if presented with only three clear business days to prepare for a trial of proceedings to which their client had not yet been joined and in which their client had not been the subject of pre-trial orders for preparing and filing a defence, preparing and filing evidence, issuing subpoenas, and locating and confirming availability of witnesses [47].” Counsel for the respondent argued that the HCA ought not to rule in favour of a new trial, despite the denial of procedural fairness, because such a course of action would not make any difference to the result [48]. However, the court did not accept this proposition. Nor did it accept a further argument from counsel based on the conclusion reached by Emmett AJA, NSW Court of Appeal, that the appellant had no interest in challenging the 2013 Will. The HCA said “a person will have a sufficient interest if he or she has a right which will be affected by the grant [49].”
Conclusion
The appeal was therefore allowed, and the matter remitted to the Equity Division of the NSW Supreme Court for a new trial. The respondent was also ordered to pay the appellant’s costs, both for the hearing in the NSW Court of Appeal and the appeal to the HCA.
Events
GLAD - GOLD COAST LAWYERS ACHIEVING DEVELOPMENT - 4 Feb 2019
MEET THE JUDICIARY BREAKFAST - 8 Feb 2019