THE NEW SOUTH WALES BAR ASSOCIATION BAR COUNCIL MINUTES OF PROCEEDINGS Thursday 22 August 2013 in the Boardroom of the New South Wales Bar Association at 4.30 pm PRESENT: Boulten SC; Needham SC; Temby QC; McHugh SC; Traill; Hutley SC; Street SC; Game SC; Moses SC; McGrath SC; Lydiard; Walker; Healey; Stone; Toomey; Callan; Hunt; Page. APOLOGIES: IN ATTENDANCE: Peden; Steggall; McMahon. Executive Director; Deputy Executive Director; Director, Professional Conduct (for professional conduct matters). MINUTES The minutes of the meeting of 25 July 2013 were confirmed. PRESIDENT'S REPORT The President spoke to his tabled report. EXECUTIVE DIRECTOR'S REPORT The Executive Director spoke to his tabled report. He advised, in particular, about: Discussions with officers of the Attorney General s Department on technical and drafting changes to the proposed Legal Profession Uniform Law Bill 2013 We have been given on an embargoed basis a draft of the Bill, and asked for urgent comments. We are not able to relitigate policy matters. It is intended that the next iteration of the Bill will be distributed more widely. Discussions with Deputy President Gostencnik, Fair Work Commission, concerning the Commission s wish for the Bar Association to run a duty barrister scheme for the Commission, in particular to handle the expected thousands of complaints concerning bullying. Meeting with Victorian Legal Services Commissioner to resolve difficulties with the Legal Services Board s possible course of action that would have meant the 800 + NSW barristers who hold Marsh PII would have been prohibited from practising in Victoria unless they personally gained the approval of the Board. C:\Users\cwinslow\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\99M9J14Z\13_220813.doc
Representing the Australian Bar Association (with Livesey QC, Vice President) at meeting in Melbourne with the Commissioners conducting the access to justice inquiry. 2 FINANCE Financial statements for July 2013. Noted The Executive Director advised that he was discussing with the CEO of the Supreme Court the charges imposed for use of court rooms by the Bar Practice course. MEMBERSHIP The following were admitted as Class A Local Practising Barrister unless otherwise shown: Name Emma Beechey Sarah Carr Olivia Dinkha Malcolm Gibson Thomas Hollo Rhys Graham Jason Hale Oliver Jones Ye Catherine Lin Fiona McLeod SC Class B Craig Moran Geoffrey O Shea Hugh Quilter Nicholas Read Ishita Sethi James Stellios Jeffrey Tunks Josie Walker Thomas Warr Claire Wasley Chambers Seven Wentworth Chambers Arthur Phillip Chambers Jack Shand Chambers Edmund Barton Chambers 12 th Floor Selborne/Wentworth Sir Owen Dixon Chambers Hunter Street Chambers Seven Wentworth Chambers Pitt Street, Sydney Owen Dixon Chambers (Melb) Lachlan Macquarie Chambers Homebush NSW Sir Owen Dixon Chambers Denman Chambers 2 Wentworth Chambers ANU Canberra ACT Queens Square Chambers Frederick Jordan Chambers 7 Garfield Barwick Chambers Sir Owen Dixon Chambers FOR CONSIDERATION Memorandum to the Bar Council from the President dated 10 August 2013 Issues arising at the ABA meeting on 27 July 2013. The Bar Council also noted that the Practice Development Committee was giving initial consideration to the issues raised by the Rufus Black report to the Victorian Bar. The Committee was asked to consider the need for a survey of members concerning the nature of their practices to assist with the Association s strategic planning. 2
3 Memorandum to the Bar Council from Mary Walker dated 22 July 2013 The Establishment of Facilities for Retired Members including Retired Judges. The Bar Council generally considered the issues raised in Mary Walker s memorandum and agreed that the objective of catering for the needs of older and retired members should be considered further in the context of the upcoming implementation report on the Association s Strategic Plan. Note from the Executive Director to the Bar Council dated 7 August 2013 New South Wales Barristers Rules ADR. At Walker s request, the Council agreed to stand over consideration of this issue until the meeting of 5 September 2013. Memorandum to the Bar Council from the ADR Committee dated 1 August 2013 Report to Bar Council on corporate membership with ACICA. The Bar Council asked that the ADR Committee report annually on the benefits of ACICA corporate membership. Letter from John Hyde-Page to the President dated 15 August 2013 General Meeting of Bar Association 17 September 2013; Advice from SWAAB Attorneys (to follow). The Bar Council noted the content of the letter from Hyde Page to the President concerning the upcoming General Meeting on incorporation of barristers practices, and the legal advice from SWAAB Attorneys on procedural issues. The President advised that he would take a practical and flexible approach to the running of the meeting and, where possible within the confines of the Corporations Act 2001 and the Association s Constitution, to the form of proxies. In this light, and in accordance with the advice from SWAAB, the Bar Council agreed that the proposed amended motion for the meeting s consideration from John Hyde Page could be accepted. Noting the provisions of clause 9.4.2 of the Association s Constitution, whereby any five members can request a ballot in lieu of a show of hands, it was agreed that voting at the General Meeting would probably be conducted by secret ballot. The President noted that the preparations for the General Meeting will need to involve organisation issues such as registration of voters, distribution of ballot papers, certification of proxies etc. Pursuant to clause 14.6 of the Constitution, the Executive Director would be the Returning Officer. The President advised that three advices had now been received by the Association in relation to the incorporation issue, from Slater QC, Walker SC, and Webster SC. He 3
briefly outlined issues raised in the Walker SC advice, including the possible risk to advocate s immunity posed by the incorporation of barristers practices. The Bar Council agreed that Slater QC and Walker SC be invited to the next Bar Council meeting to answer any questions concerning aspects of their advices. The advices will be provided to members of the Association, along with a note from the President dealing with procedural aspects of the General Meeting, by mail and via In Brief. The President would respond formally to Hyde Page s letter of 15 August. The President said that he would also prepare a note for consideration at the next Bar Council meeting concerning mechanics of the General Meeting, including the maximum time to be allocated to speakers and the total time allowed for debate on the motion. Email from Andrew Stone to the Bar Council dated 8 August 2013 reference to item 6; letter from Andrew Stone to the President dated 14 March 2011 Bar Association Elections Information about candidates; Extract from the minutes of the Bar Council Strategy Day in relation the issue of Bar Council elections. The Bar Council discussed the various suggestions raised in Andrew Stone s email of 2 August. Bar Council noted that a progress report on implementation of the Strategic Plan was being prepared and would be submitted for the Council s consideration at a future meeting. The Bar Council agreed that it would be appropriate for Committee Chairs to provide written reports to the Bar Council every six months. Committee reports currently being prepared for inclusion in the Annual Report will be submitted for Bar Council consideration. The Bar Council agreed that the practise of the Association s various representatives on court liaison/user groups continue to be requested to provide a report to Bar Council after any meeting. The Bar Council noted that the Executive has asked the Executive Director to prepare a report for the Council on the current appointment/consultation regime for the various courts. The Bar Council agreed that Stone s paper concerning the availability of information about candidates for Bar Council elections be considered at its meeting of 19 September. Advice received on the Application of Rule 95(n) of the New South Wales Barristers Rules to Arbitrations from the Workers Compensation Commission; letters received from Craig Tanner and Eraine Grotte regarding waiver of Rule 95(n) of the New South Wales Barristers Rules. The Bar Council, noting the exceptional circumstances surrounding the applications, agreed that Craig Tanner and Eraine Grotte be exempted, pursuant to Rule 11, from the provisions of Rule 95 (n) of the New South Wales Barristers Rules to allow them to 4 4
accept briefs to appear before the New South Wales Workers Compensation Commission. Appointment of replacement member of 2013 Senior Counsel Selection Committee. The Bar Council confirmed its agreement to the appointment of Anthony Payne SC to replace Dr Melissa Perry QC on the 2013 Senior Counsel Selection Committee. GENERAL BUSINESS The Bar Council expressed its appreciation for the work of the Association s staff, in particular Ms Katie Retford, in organising the Bar Council s High Court dinner on 22 August, which had been a great success. FOR INFORMATION Letter to the Attorney General from the President dated 22 July 2013 Review of law in relation to FGM. Letter to the Executive Director from Judge Gibson of the District Court dated 19 July 2013 Bar Association s Legal Assistance scheme. Minutes of the meeting of the Common Law Committee held on 22 July 2013. Retention Schedule of NSW Bar Association Staff July 2013. Letter to the Hon T E F Hughes AO QC from the President dated 5 August 2013 regarding retiring from practice. Correspondence between the President from Geoffrey Watson SC regarding the work of Stephen Rushton SC; letter from the President to Stephen Rushton SC dated 5 August 2013 congratulating him on his recent pro bono work. Letter from the President to the Attorney-General dated 9 August 2013 Nauru s court system. 5 5
6 Letter from the President to the New South Wales Law Reform Commission dated 14 August 2013 Parole Scoping Paper. Law Council of Australia - Key Legal Issues 2013 Federal Election. Letter to the Executive Director from the Acting Director General dated 9 August 2013 Operation of the costs disclosure provisions in the Legal Profession Act 2004 in relation to third party payers. Update from the Attorney General and Justice dated 15 August 2013 Uniform Legal Profession Reform Update. Letter to the NSW Law Reform Commission from the President dated 16 August 2013 Criminal Appeals. The Bar Council noted with approval the submission prepared by the Criminal Law Committee, and asked that its thanks be extended to the authors of the submission. Minutes of the meeting of the Bar Council Executive held on 13 August 2013. The following papers were circulated via e-mail prior to the Council meeting. Transcript 2GB, Mornings, Thursday 25 July 2013 Andrew Stone on Ray Hadley Show regarding CTP Round Table. New South Wales Bar Association Media Release dated 24 July 2013 NSW CTP changes: Much pain for victims and no guarantee green slip prices will fall. Transcript ABC Riverina, Thursday 25 July 2013 Andrew Stone on CTP Laws Proposed by the NSW Government to change compulsory third party protection for person injury. Report of the Legislative Council Standing Committee on Social Issue Same Sex Marriage Law in NSW. Minutes of the meeting of the Australian Bar Association Council held on 11 June 2013 and 11 May 2013. 6
Agenda and papers for the meeting of the Australian Bar Council held on 27 July 2013. Report The Victorian Bar Performance, Challenges and Opportunities in the Post GFC Legal World by Rufus Black dated March 2013. Law Council of Australia Inquiries and Consultation Lists as at 29 July and 12 August and 19 August 2013. Federal Government s economic statement in relation to the proposed changes to the cap for self-education deductions. Media Release from the Minister for Finance and Services dated 19 August 2013 CTP Legislation withdrawn as Labor and the Greens back higher green slip prices. 7 The meeting closed at 7.15pm. Confirmed as a correct record: Phillip Boulten SC President Date: 7