Night shift | Indemnify, hold harmless or save harmless? Why diversity is core business - QLS Proctor
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April 2016 – Vol.36 No.3 Night shift | Indemnify, hold harmless or save harmless? Why diversity is core business
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Night shift 16
New legislation tackles alcohol-fuelled violence
Indemnify, hold harmless or save harmless? 20
Is there a difference?
Why diversity is core business 24
Positive outcomes for respect and inclusion
Law News and editorial
Ethics – A discourteous path 26 President’s report 3
to misconduct Our executive report 5
Professional standards – 29 News 6-9
Employing lay associates
In camera 10-14
Your library – Ceremony launches 30
‘In Freedom’s Cause’
Back to basics – Proceedings 32 Career pathways
on the Commercial List
Diary dates 52
Early career lawyers – 34
Heading for the High Court? Conference spotlight – Mackay 53
on show at NQLA conference
Alternative dispute resolution – 36
Drafting an effective arbitration New members 54
agreement Career moves 55
Workplace law – Avoiding 38 Practice management – 56
a legal hangover Keep it simple …
Family law – Court upholds 40
assets preservation order
Outside the law
Book review – The coronial 41
process explained Classifieds 57
Succession law – Domestic 42 Wine – Great white pointers 61
violence = disentitling conduct
Crossword – Mould’s maze 62
Practice and procedure – 44
Humour – Attack of the 63
Precise view of quantum pays off
Phone Drones
High Court and 46
Federal Court casenotes Contact directory, interest rates 64
On appeal – Court of Appeal 48
judgments
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President’s report
The relationships
epidemic
And why we need more judges now
We talk a lot about domestic “… The inevitable result of such delays is In 2010 we had five Family Court judges in
that it is the legal practitioners get the blame Queensland and now with the most recent
violence. for spending all the client’s money without appointment by the federal Attorney-General,
achieving anything. A quote such as ‘You’ve Senator Brandis, we have four, so we are
And while there is every reason to highlight
charged me $10,000 for what – nothing’s still one down in terms of numbers of Family
domestic violence as a crisis of enormous
happened’ is commonplace in my office.” Court judges compared to six years ago.
proportions, I think we sometimes forget that
it is just one facet of a bigger problem – the In another instance, a lesbian couple parted In addition to this, we have Federal Circuit
ongoing epidemic of relationship breakdowns. ways some years after deciding to have a Court judges who are working under
child together by IVF. The child’s biological incredible pressure both within the regions
It is a safe bet that every QLS member knows
mother then cared for the child while the and within south-east Queensland.
someone – family, friend or client – who has
other woman worked. When the relationship It is quite clear that there is an urgent need
experienced a divorce or separation. At best,
fell apart, the latter took the child, along with for there to be appointed – just to get back
it is an unpleasant experience; at worst, it can
all their furniture and personal effects, and to the position we were in in 2010 – a Family
destroy lives.
took out a domestic violence order against Court judge, and to relieve the current
Our family law practitioners are on hand to her former partner. pressure on the hard-working Federal Circuit
observe the worst of it, and I believe the one
“In order to get a Family Court order for Court bench, at least three new FCC judges.
common factor in these cases is that those
parenting which currently does not exist
involved are desperate to get on with their Inevitably, justice delayed becomes justice
I attempted to bring an application under
lives, to move forward, to make a fresh start. denied. And it is justice denied in that
the Family Law Act in the … Magistrates
most sensitive and vital of all areas, family
As you have no doubt heard, the delays Court to have the hearing of the parenting
relationships. It is real children who are finding
in finalising Family Court matters can be arrangements simultaneously with the DVO
that their relationships are being damaged
substantial, sometimes stretching into years. hearing,” the solicitor said. “Unfortunately
with their parents; it’s real issues with people
What some readers may not appreciate is the magistrate refused to allow me to file
who can’t progress in their new relationships
what this means when you look at it on an the documents and said that I should file
or further because their property has been tied
individual level. A number of practitioners have them in the Federal Circuit Court.
up for a lengthy period of time, and with the
written in with examples of the impact of these
“As we all know, in order to get an urgent squeeze on legal aid funding, particularly in
delays – illustrating a variety of concerns.
hearing in the Federal Circuit Court it takes relation to mediation and the like, we are seeing
In one matter, the judgment for a trial held six to eight weeks. Consequently, without in Queensland people who are effectively
in early March 2012, wasn’t delivered until the cooperation of the other woman, which becoming victims of a system that they would
January this year. The practitioner wrote: has not been forthcoming of course because ordinarily expect and hope would deal with
“… my understanding is that the de facto she is using the DVO to protect her decision their issues in a timely and sensitive manner.
could not finance her legal proceedings, and to keep our client away from the child, my
client will have to wait at least another six to Bill Potts
her legal representatives were forced to wait
eight weeks on top of the already six weeks Queensland Law Society president
until settlement (some four years later) before
they could receive payment for their services. before she will see her child again. This is a president@qls.com.au
The de facto was also forced to wait four years four-year-old child that needs their biological Twitter: @QLSpresident
before she received what she was entitled to. mother inherently.”
“I am on the receiving end of many frustrated Pause for a moment and consider the
phone calls/conferences from clients about personal stress involved in these instances
how long it takes to achieve anything. … we – the mental anguish and damage done to
are not responsible for the court’s calendar relationships, such as in the last instance,
and it is very difficult for clients to understand between mother and child.
that. ... Clients want to ‘close the book’ on And this damage is being done every day
that chapter of their lives and move on, but to people across Australia.
court delays prevent that.
back to contents PROCTOR | April 2016 3
We’re tailoring our service to better suit you. We’re working hard to deliver a more refined experience that better reflects your specific needs as a QLS member. During April we encourage you to logon to qls.com.au and update your details with us. This year we are also looking to gather information on your areas of practice so we can better tailor offerings to you and update your details if you are involved in our QLS ‘find a solicitor*’ online referral service. *The ‘find a solicitor’ service is only available to QLS members. For more information about getting involved in this QLS service please contact us at info@qls.com.au. Practising certificate and QLS Membership renewal Opens 3 May 2016
Our executive report
Federal call
to parties
Issues that matter in this election
With the next federal election who supported the Legal Profession Dinner Update your details
(19 February), Legal Careers Expo (8 March) to tailor your services
firmly on the horizon, we have and Symposium 2016 (18-19 March), not to
been developing a Call to mention the many other events and functions This month we encourage members to log on
that have filled our calendars.
Parties document that highlights to qls.com.au and ensure your details are up
You can see and read more on our major to date.
Queensland issues in the
events further on in this edition of Proctor. With the annual practising certificate and
federal arena which concern our membership renewals running from 3 to
members and the communities Pegasus prepares to fly 31 May, the necessity for current contact
details is obvious. However, other information
in which they serve and practise. Remember that delightfully old-fashioned
such as your area of practice enables us to
cliché, ‘a stitch in time saves nine’?
The document, similar in form to the one we tailor the information and offerings we send
submitted to the major political parties prior to The words may be outdated, but the you in a more relevant and meaningful way.
the last state election, is based on substantial meaning is not. Preventative measures
For those who already participate in our
input from members of our Queensland Law such as early intervention are important
online ‘find a solicitor’ service, the details
Society policy committees and consultation and useful for any organisation.
provided are also used to assist potential
with affected entities and key stakeholders. We have begun development of a series clients to better connect with you.
Council has considered the Call to Parties of initiatives that apply the concept of
document and we will send it to the federal early intervention, support and active But can she dance?
political parties for their consideration. We will implementation to a number of member
advise members of the responses when received. offerings, including corporate health, stress This month, we will all discover the answer
and mental health opportunities, practice to that question when I take to the stage
We call on Queensland federal parliamentarians support outreach programs, re-education of Brisbane City Hall for the Dancing CEOs
to respond clearly and unequivocally in regard and early intervention programs to support event. No matter the answer, I am proud to
to these priority issues. We intend to actively referred practitioners in going back to practice, have been able to put myself out there to
engage and advocate on these matters business continuity planning tools and a value raise funds for the Women’s Legal Service,
identified by our profession. expansion to our strategic partnerships. an organisation I believe we should all support.
A key concern focuses on making the Collectively, we have dubbed these initiatives It is not too late to assist with financial
federal justice system more accessible to the Pegasus project, and I look forward to support as donations can be made right up
ensure that Australians receive appropriate bringing you full details on how these will to and including on the evening. All the event
advice and assistance, no matter how they benefit members over coming months. details are at dancingceos.com.au. You
enter the justice system.
Some initiatives within the Pegasus project can donate via give.everydayhero.com/au/
We also seek a commitment to resolve family amelia-hodge-dancing-ceo-s.
are being developed with funding from the
law disputes in a timely way through provision
professional indemnity insurance Law Claims You can support me and fellow Dancing
of more trial judges and assistance for
Levy Fund. These funds are tightly controlled CEOs entrant Clarissa Rayward, along with
Queensland businesses, including law firms,
under the Queensland Law Society Indemnity the Women’s Legal Service, at an engaging
by reviewing regulation and reducing both
Rule 2005, and are being strictly applied discussion on innovation and the legal
red-tape and financial pressure.
under section 17 of the rule for: profession on 11 April. The forum will feature
I thank all members who have contributed panellists Monica Bradley, Glen Carson and
“(3)(iii) the investigation of and research
to the development of the Call to Parties Bruce Humphrys. See eventbrite.com/e/
into the circumstances that give rise to
document to date and look forward to hearing innovation-and-the-legal-profession-a-
Claims and the development and delivery
the responses from our federal parliamentarians. forum-supporting-wls-tickets-23950459469
of risk management and early intervention
educational programmes to address the for details.
Thanks to so many!
underlying causes giving rise to such Claims.”
Amelia Hodge
It has been a busy start to the year! My Stay tuned. Queensland Law Society CEO
heartfelt thanks go to the many sponsors,
presenters, exhibitors, delegates and guests a.hodge@qls.com.au
back to contents PROCTOR | April 2016 5
Letters to the editor: We invite and encourage our members and others in our
Queensland Law Society Inc.
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Advocacy of ‘utmost importance’ to improve legislation or to defend
President: Bill Potts fundamental issues of legal principle.
Deputy president: Christine Smyth Re: The letter from Martin Punch in March
To suggest that the peak body of lawyers
Vice president: Kara Cook Proctor suggesting that the advocacy role of
should refrain from commenting about
Immediate past president: Michael Fitzgerald the Society is “contrary to members’ views”.
legislation, matters of human rights and
Councillors: Michael Brennan, Christopher Coyne,
Jennifer Hetherington, Chloe Kopilovic, Elizabeth Shearer, The propositions put forward by Martin issues concerning the rule of law is,
Kenneth Taylor, Kara Thomson, Paul Tully, are simply absurd. To suggest that the frankly, appalling.
Karen Simpson (Attorney-General’s nominee).
only interest of the Society is self-interest
Chief executive officer: Amelia Hodge I am proud to have been part of the
is contrary to what being a member of
advocacy function of the Society and
a profession entails.
Editor: John Teerds j.teerds@qls.com.au | 07 3842 5814 believe it is of the utmost importance that
Design: Alisa Wortley I certainly agree that in an organisation it be maintained, strengthened and be
Art direction: Clint Slogrove of our size there will be differences of a source of pride for our profession.
Advertising: advertising@qls.com.au
opinion on a multiplicity of issues.
Display Ads / Classifieds: I cannot disagree more than to suggest
advertising@qls.com.au / classified@qls.com.au From the 15 years or so in which I have that we must contain ourselves to self-
Subscriptions: Hayden De Waal 07 3842 5812 served on QLS committees as part of the interest only.
Proctor committee: Adrian Braithwaite, Dr Jennifer Corrin, advocacy function, I have never observed
Kylie Downes QC, Steven Grant, Vanessa Leishman,
Greer Oliver, Bruce Patane, Hayley Schindler, submissions being put forward which Peter Eardley
Christine Smyth, Anne Wallace. are anything other than a determination Brisbane
Printing: Print Works. Proctor is published monthly
(except January) by Queensland Law Society.
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at least six weeks prior to the month of intended
publication. Submissions with legal content are subject
to approval by the Proctor editorial committee, and
guidelines for contributors are available at qls.com.au
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Thynne + Macartney
RideWest for mental health
Circulation: CAB, 30 September 2015 – 10,079
Thynne + Macartney is taking part
No person should rely on the contents of this publication. Rather, in RideWest from 6-13 May to help
they should obtain advice from a qualified professional person. This
publication is distributed on the basis that Queensland Law Society break down barriers to accessing
as its publisher, authors, consultants and editors are not responsible
for the results of any actions taken in reliance on the information in
mental health services in rural and
this publication, or for any error in or omission from this publication,
including those caused by negligence. The publisher and the authors,
remote areas.
consultants and editors expressly disclaim all and any liability
howsoever caused, including by negligence, and responsibility to
RideWest is a gruelling boutique charity bike
any person, whether a purchaser or reader of this publication or ride from Brisbane to Longreach covering
not, in respect of anything, and of the consequences of anything,
done or omitted to be done by any such person in reliance, whether 1237km and benefiting the Royal Flying
wholly or partially, upon the whole or any part of the contents of
this publication. Without limiting the generality of the above, no
Doctor Service’s mental health services.
author, consultant or editor shall have any responsibility for any act
or omission of any other author, consultant or editor. Requests for The head of Thynne + Macartney’s
reproduction of Proctor articles are to be directed to the editor. Unless agribusiness group, Bill Loughnan, said:
specifically stated, products and services advertised or otherwise
appearing in Proctor are not endorsed by Queensland Law Society. “As lawyers to rural communities we have Hannah Byrne, left, and Mark Winn
Contributors to Proctor grant to the Society a royalty free, perpetual, often seen the stress caused by financial
non-exclusive, irrevocable paid up licence to:
hardship, isolation and the challenges of
a. use, reproduce, communicate and adapt their contributions; and
ongoing drought, floods and fire in different Hannah said. “I believe that by supporting
b. perform any other act with respect to the Intellectual Property
and participating in events like these
in their contributions and to exploit or commercialise all those rural regions. The link between stress and
Intellectual Property rights. we can help provide more support and
mental health issues is well known.”
QLS will acknowledge a contributor’s moral rights by attributing
authorship to that contributor.
resources to people in the rural community
Small sums of money from the Copyright Agency Limited (CAL)
One of the firm’s commercial litigation who need it most.”
are periodically payable to authors when works are copied by CAL partners, Mark Winn, and agribusiness
licensees (including government departments, tertiary institutions, All RideWest participants are required
lawyer Hannah Byrne will ride on behalf of
etc). As it is not financially viable for the Society to collect and to fundraise $5000 each, as well as
distribute these royalties to individual authors, contributors undertake the firm, which is supporting the endeavour.
to become a member of CAL and receive any due payments directly covering all the costs of the ride including
(see copyright.com.au) or they waive all claims to moneys payable
by CAL for works published in Society publications. It is a condition
“I know people who have suffered from accommodation, food, support team
of submission of an article that contributors agree to either of these mental health issues and have seen the and bike transport. To donate to Mark
options. Contributors should read the Guidelines for Contributors
on the Society’s website: qls.com.au long-term impact this can have not only and Hannah’s fundraising totals, see
on the individual but on their families,” ridewest.com.au/home/riders.
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back to contents
News
USC appoints new
law school head Briefing on new
A property law expert who arrived
Insurance List
at the University of the Sunshine
The Federal Court of Australia
Coast (USC) 18 months ago from
has invited practitioners to an
Melbourne’s Monash University
information session on its new
has been named as head of the
Insurance List for short matters.
USC Law School.
The Chief Justice will conduct an
Professor Pamela O’Connor was appointed information session to explain the list,
to the role in February after the retirement its aims and how it is expected to run
of USC’s inaugural school heads, Professors at 2.15pm, repeated at 5.15pm, on
Anne and Neil Rees. Tuesday 19 April in Brisbane. The
Professor O’Connor, who teaches property sessions are expected to run for about
law and administrative law and is a member an hour and will be held in Courtroom
of USC’s Sustainability Research Centre, 1, Brisbane Registry, Federal Court of
worked for more than 20 years in the Australia, Harry Gibbs Commonwealth
Faculty of Law at Monash and practised Law Courts Building, 119 North Quay,
law in Victoria for 11 years. Brisbane. No RSVP is required.
The Insurance List has been
She is interested in the sustainable
established within the commercial
management of natural resources, has an
contracts, banking, finance and
international reputation for publications in
insurance sub-area of the commercial
property law, and has advised law reform
and corporations national practice area.
commissions in England, Scotland and
Initially, it is intended that the list will be
New Zealand. run by the Chief Justice, beginning in
“I’m looking forward to building on the “Their work was critical to the successful Brisbane on 19 and 20 April.
practical focus of our program, and offering establishment of our Law School in 2014 and More information is available at
a broad range of law subjects to meet the its strong connection to the Sunshine Coast fedcourt.gov.au/law-and-practice/
diverse interests and career directions of community,” Professor Lohmann said. national-court-framework/
our students,” she said. insurance-list.
“USC now has 200 law students
Senior Deputy Vice-Chancellor Professor and continues to receive tremendous
Birgit Lohmann congratulated Professor support from the local community, with
O’Connor on her appointment and paid our centrepiece Law Clinic operating in
tribute to the contributions of Professors conjunction with the Suncoast Community
Anne and Neil Rees. Legal Service at Maroochydore.”
The Queensland Law Society is a proud sponsor of the
BRISBANE | TOOWOOMBA | SUNSHINE COAST | MACKAY | TOWNSVILLE | CAIRNS
Join colleagues from across the profession as we hit the streets on Tuesday 17th May 2016
to fundraise for QPILCH and celebrate the pro bono effort in Queensland.
Register now at www.qldlegalwalk.org.au
back to contents PROCTOR | April 2016 7
Advocacy
Advocacy
Society considers ‘consent’
at revenge porn inquiry
Queensland Law Society, with nature without consent. This practice is In response to questioning from the Senate
the assistance of its Criminal Law becoming more prevalent, both in straight- committee, we noted that the concept of
out cases of bullying and harassment, and in consent given to the sharing of images of
Committee, focused on the issue of
association with family law proceedings, custody a sexual nature not surviving the end of the
‘consent’ in a submission to the Senate battles and instances of domestic violence. relationship is not novel, in that many consents
inquiry into the phenomenon colloquially do not survive the end of a relationship.
In our submission (which is available on the
referred to as ‘revenge porn’. inquiry website), we submitted that both the Both the Society and the Law Council
On 19 February, QLS senior policy advisor capacity to give consent and the limits of also emphasised the point that specifying
Shane Budden appeared via teleconference that consent should be mandated by statute. that non-consensual sharing of images of
at a public hearing on this topic, along with In particular, we argued that persons under a sexual nature constitutes an offence would
Pauline Wright, Dr Natasha Molt and Rebecca the age of 18 years should not be able to have its own deterrent effect, particularly if
give consent, and that any consent given accompanied by an appropriate community
Griffiths from the Law Council of Australia.
within the context of a relationship should education program.
The purpose of the inquiry, under the not survive the end of the relationship.
auspices of the Senate Legal and Constitutional The committee’s report, delivered on
At the hearing, these points were expanded
Affairs References Committee, was to 25 February, is available at aph.gov.au >
on by noting that the Internet did not have
determine whether or not it was appropriate Committees > Recent reports (Senate).
the benefit of the social mores which
for the Federal Government to create criminal ordinary society has evolved to govern
sanctions for the sharing of images of a sexual the rules of intimacy.
Careers expo a draw for students
Queensland Law Society held
its annual Legal Careers Expo on
8 March, attracting almost 500 law
students and 30 exhibitors.
Students were encouraged to meet potential
employers and industry representatives,
as well as receiving information about
graduate placements and vacation
clerkships. They were also shown how to
fill out job applications by a panel of human
resource professionals, and heard first-hand
experiences from early career lawyers.
8 PROCTOR | April 2016 back to contentsNews
Mullins joins
UEL network
Commercial law firm Mullins Lawyers is
the first firm in the Southern Hemisphere
to join the United Employment Lawyers
(UEL) legal network.
UEL is a network of lawyers and legal
professionals broadly based in the United
Kingdom and Europe. Among other benefits,
the network facilitates discussions amongst
members on common legal issues that affect
business clients on a global scale.
Mullins employment and industrial relations partner
Alan Strain said many clients were now doing
business in the United Kingdom and Europe.
A moving ceremony “We are also finding clients of other firms are
undertaking work in Australia, Queensland in
launches ‘In Freedom’s Cause’ particular, and Asia and the Americas,” he said.
“Given the specialised nature of employment
and industrial relations law, we want our clients
The haunting strains of The Last Post and Rouse echoed through the Banco Court at to have access to genuine specialists and be
the Queen Elizabeth II Courts of Law on 18 February as part of a moving ceremony to able to reciprocate that advantage when work
launch the ‘In Freedom’s Cause’ exhibition and publication. Pictured: Bugler Alex Long. needs to be undertaken in our jurisdiction. This
network enables us to assist clients on a global
Report and photos, page 30 scale and provide them with direct access to
local specialists we know and can trust.”
back to contents PROCTOR | April 2016 9In camera
1
Profession honours
Morcombe lawyer
Queensland Law Society CEO Amelia Mr Boyce’s close relationship with Bruce
Hodge emceed her first annual Legal and Denise Morcombe also prompted him
Profession Dinner in front of more than to help them set up the Daniel Morcombe
Foundation, an organisation dedicated
270 lawyers at a gala event held at 2
to child protection.
Sofitel Brisbane Central’s Ballroom
Le Grand on Friday 19 February. More recently, Mr Boyce represented the
family of Thomas Olive, who died at the
A who’s who of the state’s elite legal fraternity Nambour General Hospital from a rare
included Justice Susan Kiefel AC of the High disorder called rhabdomyolysis after doctors
Court, Queensland Chief Justice Catherine failed to diagnose the condition in time to
Holmes, Court of Appeal president Margaret treat him. He also represented the family of
McMurdo and her husband, Justice Philip six-year-old Lilli Sweet at a coronial hearing
McMurdo of the Supreme Court, Justice in November last year following her death
Martin Daubney, Queensland Police Deputy at the same hospital due to a delay in
Commissioner Brett Pointing, Federal Court administering antibiotics for an infection.
judges Andrew Greenwood and Susan
Purdon-Sully, as well Society president Bill In nominating Mr Boyce for the medal, his Butler
Potts and vice president Christine Smyth. McDermott Lawyers colleague, Alan Clark,
said: “Peter’s involvement in coronial inquests
Mr Potts awarded the night’s biggest prize – is an enormously time-intensive and involved
the QLS President’s Medal – to small-town process. There is no doubt that the Morcombe,
lawyer Peter Boyce OAM. Thomas and Sweet families benefited greatly
The Nambour-based solicitor was selected from not only the legal work Peter undertook
for his relentless, unpaid work helping and for them during a difficult time.”
supporting the family of murdered Sunshine In accepting the award, Mr Boyce humbly
Coast teenager Daniel Morcombe and his thanked the Morcombe family for having
tenacity in helping to secure the conviction faith in him to pursue justice for Daniel.
of the teen’s killer – Brett Cowan.
He attempted to dismiss himself as being
Mr Potts, in announcing Mr Boyce’s win, said: a deserving recipient of the award, saying
“Peter stands as a leader in our profession there were many lawyers in the profession
and is one of the countless lawyers who who were just as worthy he was. 3
selflessly toil for little or no reward in the
pro bono space within their communities.’’ However, the rousing ovation he received was
proof he was a popular and praiseworthy winner. 1. President Bill Potts, Peter Boyce OAM –
Mr Boyce, who acted for no fee as the
The keynote address was given by Justice Kiefel, President’s Medal 2016 recipient
Morcombes’ solicitor throughout their nine-
a Queensland appointee to the High Court. 2. Yvette D’Ath, Attorney-General, Minister
year-ordeal and was instrumental in questioning for Justice and Minister for Training and Skills
Daniel’s killer, including smashing his alibi during Other award recipients on the night included 3. Queensland Law Society CEO Amelia Hodge
a lengthy coronial inquiry that began in 2010. Outstanding Achievements in Law to Nola
Cowan, now 46, was sentenced in March 2014 Pearce and Dr Matthew Turnour.
to life imprisonment with a non-parole period Find more images on Facebook
facebook.com/qldlawsociety
of 20 years for murdering the young teen.
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800 Ann Street, Fortitude Valley. Tel: (07) 3853 0022
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*Offer available at Brisbane BMW on vehicles ordered and delivered between 01/03/2016 – 30/04/2016. ~BMW Scheduled Servicing Basic is based on the vehicle’s Condition Based Service
monitoring system for 5 years from date of first registration or up to 80,000kms, whichever occurs first. Normal wear and tear items and other exclusions apply. ^Scheduled Servicing must
be conducted by an authorised BMW dealer. Loan car is subject to availability. #Applies within a 20km radius of Brisbane BMW and subject to vehicle availability. 1 Drive away price on a new
BMW 125i with M Sport Package and metallic paint. 2 Drive away price on a new BMW 330i with Sport Line and metallic paint. Prices are based on the vehicle being garaged in Brisbane and a
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to eligibility. Terms, conditions, exclusions and other limitations apply, and can be viewed at brisbanebmw.com.au/advantage. Consult Brisbane BMW for further details.1 2 3 4 5 6 7 8 9 12 PROCTOR | April 2016 back to contents
In camera
10 11
Symposium snapshots
Photographic highlights from QLS Symposium 2016,
Brisbane Convention & Exhibition Centre, 18-19 March
1. Michele Sheehan, Caite Brewer, Ann-Maree David, 11. Attorney-General Yvette D’Arth
Chris Kilpatrick, Kelly Caulk 12. Opening plenary presenter Rabia Siddique …
2. Andrew Smyth, Clarissa Rayward a spellbinding address (and bottom of page opposite)
3. QLS president Bill Potts 13. Anne English, Councillor Elizabeth Shearer
4. Councillor Chloe Kopilovic, deputy president 14. CEO Amelia Hodge with the affirmative team from
Christine Smyth the Symposium debate, ‘You’re not a real lawyer
5. Cathryn Warburton, Mark Warburton, unless you’ve been to court’ – Danielle Keys,
Karen Renton-Vedelago Rebecca Treston QC and Andrew Cardell-Ree.
6. Naomi de Costa, Councillor Michael Brennan 15. Uditi Desai, Brian Herd
7. Emma Condon, Ben Hatten, Natalie Renouf 16. Professor Nick James of Bond University
8. Eugene White, Bruce Doyle, Eugene O’Sullivan 17. Symposium by Night – a balmy evening and 12
9. The Helmsmen beautiful Brisbane skyline.
10. Peter Carrigan, Peter Mills
13 14 15
16
Find more images on Facebook
facebook.com/qldlawsociety 17
back to contents PROCTOR | April 2016 13Major sponsor
Thank you
QLS Symposium 2016 wouldn’t have been the success it was without our valued sponsors. Queensland Law
Society would like to take this opportunity to express our sincere gratitude for the support from our sponsors.
Gold sponsor Silver sponsors Symposium by Night sponsor Hospitality sponsor
Stream sponsors Trade exhibitors Supporters
14 PROCTOR | April 2016 back to contentsLegal Community
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New legislation tackles
alcohol-fuelled violence
Alcohol-fuelled violence has Notably, the legislation sought to reduce However, in light of a public outcry over the
allowable extended trading hours for most recent death of Cole Miller in Brisbane as a
consistently been a hot topic in licensed premises in Queensland, amend result of a ‘coward punch’, political sentiment
Australian media in recent times the existing lockout provisions under the swayed and in the early hours of 18 February
Liquor Act 1992 (Qld) (the Liquor Act) and 2016 the Government struck a last-minute
and one which the Queensland introduce the concept of “3am safe night deal with Katter’s Australian Party to support
Government has indicated it precincts” (3am Safe Night Precincts). the legislation, which was then passed.
When the legislation was introduced, This means that from 1 July 2016, licensed
wishes to confront. it received substantial opposition from venues not within a 3am Safe Night Precinct
the hotel and nightclub sectors and the will call last drinks at 2am and venues that
In order to address the issue, the minority Government was unsuccessful
Attorney-General and Minister for Justice, are within a 3am Safe Night Precinct will
in obtaining bipartisan support and the call last drinks at 3am. The only substantive
Yvette D’Ath introduced the Tackling Alcohol- backing of the three independent members
Fuelled Violence Legislation Amendment change to the original Bill is that the 1am
of Parliament. As a consequence, the lockout imposed on all venues within a
Bill 2015 (the legislation) into Parliament general industry consensus was that the 3am Safe Night Precinct will now come
in November 2015 as part of an election legislative changes would not be passed into effect from 1 February 2017, providing
commitment made by the Government to by Parliament. these venues with time to transition to an
address the damage caused to society
appropriate operating model.
by alcohol-fuelled violence in Queensland.
16 PROCTOR | April 2016 back to contentsLiquor laws
Changes to liquor laws
aim to reduce late-night
violence in Queensland.
Tom Young looks
at the details.
The legislation also removes the link Amendments to the • providing for the approval of existing
between licensed gaming hours and alcohol Liquor Act 1992 (Qld) Safe Night Precincts as 3am Safe Night
consumption hours, but makes no change Precincts in consultation with the local
to the current restriction on gaming before Amongst other statutory amendments, boards. Only 11 out of the 15 existing
10am. As prescribed in the legislation, the legislation amends the Liquor Act by: Safe Night Precincts have a local
these laws will be independently reviewed in board, which is a prerequisite under the
• preventing the sale and supply of alcohol
July 2018, two years after commencement. after 2am, except in the case of premises legislation to applying to become a 3am
within a 3am Safe Night Precinct, which may Safe Night Precinct. If a 3am Safe Night
The passing of the changes to licensing
trade until 3am (upon approved application Precinct is declared, licensed venues
laws has come as a shock to licensees,
for extended trading hours), and airports currently approved for liquor trading
particularly within the hotel industry, which
and casinos with commercial special facility until 3am or later will automatically be
is now grappling with the commercial impact
licences, which may still apply for extended approved to sell or supply liquor until
the new legislation will have on licensed
trading to 5am. A 30-minute grace period 3am from 1 July 2016.
venues in Queensland.
will continue to apply, which allows patrons
to finish their drinks after last drinks are
called, and licensees retain their current
ability to apply for up to 12 one-off permits
per year to sell or supply liquor beyond their
approved liquor trading hours up to 5am.1
back to contents PROCTOR | April 2016 17• Venues within a 3am Safe Night Precinct • The transitional provisions within the Practical considerations
that do not have approval for extended legislation prohibited, from 10 November
liquor trading hours but wish to trade 2015, any new applications for extended Some of the practical consequences of the
beyond standard hours (that is, after trading hours for the sale of takeaway amendments to the Liquor Act and Gaming
midnight) may apply for extended hours liquor from being accepted or approved, Act include:
permits for liquor trading up to 3am. The and provided for any such applications that • Local boards of Safe Night Precincts
Minister may revoke a 3am Safe Night were undecided as at 10 November 2015 have to apply to become 3am Safe
Precinct approval if the local board does to lapse. However, these changes do not Night Precincts to allow their constituent
not provide adequate safeguards for 3am affect existing extended trading approvals licensed venues to trade until 3am (upon
trading, if the local board no longer wants for takeaway liquor. Venues that currently individual approval of extended trading
the precinct to trade until 3am or if the sell or supply takeaway liquor to midnight hours). Such applications have to be
Minister determines that continued 3am are able to continue to do so.5 approved by the Minister before the
trading would have an undue adverse • requiring licensees whose carparks Minister makes a recommendation to the
effect on health, safety or amenities. are designated as part of their licensed Governor in Council to prescribe the Safe
• If the designation as a 3am Safe Night premises to obtain approval from the Night Precinct as an approved 3am Safe
Precinct is revoked, the entire precinct Commissioner of Liquor and Gaming Night Precinct. The boards of Safe Night
is required to end trading at 2am.2 (the commissioner) before holding an Precincts have until 1 February 2017 to
• bringing forward the existing 3am lockout event at which alcohol is to be consumed be officially prescribed as 3am Safe Night
time under sections 142AA and 142AB or supplied in the carpark. This overrides Precincts, otherwise licensees within the
of the Liquor Act to 1am. The 1am lockout existing approvals or conditions on Safe Night Precincts will automatically have
provisions apply to all liquor suppliers in licences. Such carpark approvals are their trading hours reduced to 2am.9
a 3am Safe Night Precinct who trade after limited and will only apply on the day
• If a Safe Night Precinct does not currently
1am, including those that stop trading and during the specified hours stated
have a local board, then one must be
at 2am. The lockout does not apply to in the commissioner’s approval.6
established in order to apply to the Minister
premises located outside a 3am Safe to become a 3am Safe Night Precinct.
Night Precinct.3 Amendments to the Gaming
• The primary beneficiaries of the legislation
• prohibiting the sale or consumption Machine Act 1991 (Qld) are airports and casinos that hold
of high-alcohol content and rapid- commercial special facilities licences
The legislation also amends the Gaming
consumption drinks (for example, shots) whose existing late-night trading hours,
Machine Act 1991 (Qld) (the Gaming
after midnight, except at venues that or right to apply for extended trading
Act) so that gaming hours and liquor
specialise in premium spirits. The specific hours until 5am, remain intact and are not
consumption hours are no longer linked.
types and amounts of alcohol to be affected by the 1am lockout provisions.
Key changes include:7
prescribed will be determined following
• As existing gaming hours are unaffected by
a stakeholder consultation.4 • Existing gaming hours are ‘grandfathered’
the legislation, other beneficiaries include
• removing the ability for all commercial under the legislation so that venues
venues that are already licensed to provide
hotel, community club and commercial which currently offer gaming and adult
gaming activities until 5.30am, which will
special facility licensees to apply for entertainment are able to continue to
have at least a 30-minute, and up to a
extended trading hours (outside of the provide those activities for the duration
1½-hour, trading advantage over other
standard 10am-10pm) for the sale of of the approved gaming and adult
licensees who do not have extended
takeaway liquor so that such applications entertainment hours in effect immediately
gaming hours approvals before 1 July 2016.
can only be made for airports and casinos prior to 1 July 2016, despite the winding
back of liquor trading hours on 1 July 2016. • Until 1 July 2016, the Liquor Act and
with commercial special facility licences.
Gaming Act still allow licensees to apply
• After 1 July 2016, gaming hours may be
for extended liquor and gaming hours until
approved for up to two hours after the
5am and 5.30am, respectively. Therefore,
service of liquor has ceased, allowing
in order to lock in late-night gaming until
gaming services to continue to trade up
5.30am and despite the fact that liquor
to 5am in a 3am Safe Night Precinct and
trading hours will automatically reduce to
4am outside of a 3am Safe Night Precinct.
2am or 3am (depending on whether the
Despite questions raised in Parliament at
venue is within a 3am Safe Night Precinct),
the second reading speech, the legislation
from 1 July 2016 licensees who do not
does not amend the prohibition on gaming
currently have approved extended trading
before 10am.8 The Government has made
hours may apply for extended liquor and
it clear that it has no intention to change
gaming hours until 5am and 5.30am,
this regulation, nor will licences be provided
respectively. However, the likelihood of
that allow for pre-10am trading.
applications being prepared, considered
and approved by the commissioner
between now and 1 July 2016 is low, and
liquor applications not approved before
1 July 2016 will automatically be treated
as applications to trade until 2am or 3am,
as the case may be. This would mean
extended gaming hours could only be
approved until 4am or 5am. It is therefore
likely that licensees who have not already
lodged applications for extended trading
hours will miss out on this advantage.
18 PROCTOR | April 2016 back to contentsLiquor laws
• Due to the legislation decoupling liquor
Notes
and gaming trading hours, there will be 1
Explanatory Notes, Tackling Alcohol-fuelled 7
Explanatory Notes, Tackling Alcohol-fuelled Violence
the ability to offer gaming (upon approved Violence Legislation Amendment Bill 2015 (Qld), Legislation Amendment Bill 2015 (Qld), 4; Tackling
application) well beyond the impending 2, 24; Tackling Alcohol-Fuelled Violence Legislation Alcohol-fuelled Violence Legislation Amendment
reduced liquor trading hours, which may Amendment Bill 2015 (Qld) cl.62. Bill 2015 (Qld) 1RS, 2892.
be of some consolation to licensees who 2
Tackling Alcohol-fuelled Violence Legislation 8
Gaming Machine Act 1991 (Qld) s235; Gaming
anticipate revenue losses due to reduced Amendment Bill 2015 (Qld) 1RS, 2891; Explanatory Machine Regulation 2002 (Qld) reg15.
liquor sales. Notes, Tackling Alcohol-fuelled Violence Legislation 9
Explanatory Notes, Tackling Alcohol-fuelled Violence
Amendment Bill 2015 (Qld), 3, 16, 17; Tackling Legislation Amendment Bill 2015 (Qld), 3.
Alcohol-Fuelled Violence Legislation Amendment
Will the legislation achieve Bill 2015 (Qld) cl.29, 54.
its purpose? 3
Tackling Alcohol-fuelled Violence Legislation
Amendment Bill 2015 (Qld) 1RS, 2891; Explanatory
The long-term affect that the legislation will Notes, Tackling Alcohol-fuelled Violence Legislation
have on Queensland venues and whether a Amendment Bill 2015 (Qld), 2; Tackling Alcohol-
Fuelled Violence Legislation Amendment Bill 2015
material decrease in alcohol-fuelled violence
(Qld) cl.31, 38.
will be achieved remains to be seen. Will 4
Explanatory Notes, Tackling Alcohol-fuelled
our state’s traditional attraction of the tourist Violence Legislation Amendment Bill 2015 (Qld),
dollar dwindle further? What will be the flow- 4; Tackling Alcohol-fuelled Violence Legislation
on affect for major upcoming Queensland Amendment Bill 2015 (Qld) 1RS, 2892; Tackling
events, such as the 2018 Gold Coast Alcohol-Fuelled Violence Legislation Amendment
Commonwealth Games? Will the legislation Bill 2015 (Qld) cl.43, 49.
5
Explanatory Notes, Tackling Alcohol-fuelled
survive repeal in the event of a change in
Violence Legislation Amendment Bill 2015 (Qld),
government? These are questions that will 3 – 4; Tackling Alcohol-fuelled Violence Legislation
likely occupy the minds of many within the Amendment Bill 2015 (Qld) 1RS, 2892; Tackling
industry and State Government until the Alcohol-Fuelled Violence Legislation Amendment
2018 review. Bill 2015 (Qld) cl.62.
6
Explanatory Notes, Tackling Alcohol-fuelled Violence
Legislation Amendment Bill 2015 (Qld),13; Tackling
Tom Young is a partner at Norton Rose Fulbright Alcohol-fuelled Violence Legislation Amendment
Australia and leads the firm’s national Tourism Bill 2015 (Qld) 1RS, 2893; Tackling Alcohol-Fuelled
Focus Group. Violence Legislation Amendment Bill 2015 (Qld)
Image credits: p16-17 ©iStock.com/zstockphotos, cl.42, 62, 66.
p18 ©iStock.com/Ugurhan Betin
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back to contents PROCTOR | April 2016 19Contract law
Indemnify, hold
harmless or save
harmless?
Is there a difference?
These common terms are familiar to anyone with contract experience,
but there is still debate on the shades of legal meaning that each signifies.
Sean Gomes looks to the case law for answers.
Contract lawyers will be familiar against loss”. Finally in the Australian High ‘save harmless’ but also to the ‘business
Court decision of Sunbird,4 Mason CJ sense’ of the agreement and the reasonable
with the terms ‘hold harmless’ held that “an indemnity is a promise by the expectations of the parties.
and ‘save harmless’ in the context promisor that he will keep the promisee The words ‘indemnify’ and ‘save harmless’
harmless against loss as a result of entering
of indemnities. could be viewed as a doublet which are used
into a transaction with a third party”. to reinforce and emphasise their effect.8 The
However there is still uncertainty as to the Therefore on balance and looking at the words are therefore not ‘mere surplusage’.
meaning, effect and scope of such clauses terms alone, the authorities lean in favour Even if the above view is incorrect, it is well
in contracts. One example clause is: of the interpretation that ‘to indemnify’ established law that the presumption against
“The Contractor shall indemnify, hold and is to ‘save harmless’ and vice versa. surplusage does not assist in interpretation
save harmless and defend, at its own However it is well established that courts of commercial contracts.9 The courts (English
expense, the Principal, its officials, agents, must take into account the construction of Court of Appeal) note the commercial reality
servants and employees, from and against the whole clause and the contract in every of drafting reflects the constant adding to
all suits, claims, demands and liability to any case, and not be bound by the mere use of and variation from time to time without
nature, including their costs and expenses, the terms ‘indemnify’ and ‘save harmless’.5 much attention being paid to overlapping
arising out of the acts or omissions of The proper approach is therefore to consider or repetition. The court looks at the whole
the Contractor or its Employees in the the whole clause and contract in every of the commercial agreement and what
performance of this Agreement…” circumstance, whether or not the phrase legal responsibilities arise from it.
‘save harmless’ is used.
Indemnity and save harmless Effect of a save harmless clause
One objection to the view that ‘indemnify’
In the event that a clause is interpreted to
is synonymous with ‘save harmless’ is the
Definition of indemnify save harmless a party from potential liability,
principle of contractual interpretation against
It is appropriate to first consider the defined such an indemnity is called a preventative
surplusage. The principle states that no part
meaning of ‘indemnify’. Etymologically, indemnity. A preventative indemnity may be
of a contract should be rendered meaningless
‘indemnity’ is derived from the Latin indemnis, enlivened before actual loss is suffered.10 This
or viewed as mere surplusage.6
which means ‘harmless’. Combined with species of indemnity is immediately breached
the term facere, which means ‘to make’, Following this rule, the term ‘save harmless’ when the indemnified party suffers any loss
the term ‘indemnity’ collectively means (being a different term) must have a different which arises out of the failure to keep the
‘to make harmless’. In a comprehensive meaning. This was the approach in the indemnified party ‘harmless from any loss’.11
survey of dictionaries defining the term, Ontario Superior Court of Justice decision The effect is to give rise to an obligation
an overwhelming majority indicates that in Stewart Title Guarantee Co v Zeppieri. to reimburse the actual loss.12
to ‘indemnify’ means ‘to save harmless’.1 The court held that the contractual obligation
to ‘save harmless’ was broader than that Indemnity and hold harmless
Case law on the difference between of mere indemnification and meant that Additionally, there is uncertainty as to
indemnity and save harmless the beneficiary of the save harmless clause the scope of a ‘hold harmless’ clause.
In Brental v Holmes,2 it was held that “the “should never have to put his hand in his
pocket in respect of a claim” under the Hold harmless = indemnity?
terms (indemnity and save harmless) are
synonymous, and mean the same thing”. agreement.7 This made the insurer in that One school of thought considers the
In Total Oil Products (Aust) Pty Ltd v case liable for the ongoing costs of defending terms ‘indemnity’ and ‘save harmless’ to
Robinson,3 it was held that a contract of the claim. It should be noted that the court be synonymous with ‘hold harmless’.13 In
indemnity is one to “keep the other harmless also had recourse to not only the words Majkowski (Delaware Court of Chancery),
back to contents PROCTOR | April 2016 21You can also read
