Cornwall Stodart | Publications

Issue 10: October 2006

Welcome to Issue No.10 of Reflections. The blossoms on the trees herald the arrival of Spring and they aren’t the only changes this year. There has also been change and growth at Cornwall Stodart.

Over the past 12 months, five new partners have been appointed and over 20 new staff have joined the firm. Our most recent appointments to partnership are Wayne Kelcey (who joined the firm in January), Leneen Forde and Levent Shevki (who were promoted to partnership effective from 1 July).

More details of personnel changes are contained in our CS Update.

We continue to be involved in a range of interesting and challenging matters. A brief overview of several follows:

We act for a national broadcaster in an action involving the controversial areas of breach of privacy and negligence.
We act for Ericsson (Australia) Pty Ltd in litigation with Hydro-Electric Corporation and the State of Tasmania/Tasmania Police in relation to a $41 million claim under the Trade Practices Act.
We acted in a management buy-out of a large trans-Tasman mortgage origination business.
We acted for one of the major car manufacturers and a parts supplier respectively in the negotiations with the administrators of car parts manufacturers Huon Corporation and Ajax Fasteners to ensure a continuing supply of parts to the automotive industry.

February saw a turnout of Cornwall Stodart staff and their significant others at a cocktail function at Feddish in Federation Square to celebrate the start of the 2006 calendar year. Not even torrential downpours could dampen the party atmosphere.

The Whackers (our mixed netball team) had a great Autumn season, finishing in the top 4 and making it to the semi-finals. They are hoping to go one step further in the Spring season and bring home some silverware. In a change of pace, we have a mixed lawn bowls team playing in a lunchtime competition – the Aunty Jacks. We wish them well in their debut season.

Two of our more energetic staff – Paul Ferguson (Operations Manager) and Katherine Payne (Lawyer, Commercial Litigation) – entered (and completed!) this year’s City 2 Surf fun run in Sydney. At this stage, both have aspirations to compete in next year’s run and hope to better their times.

With the gloom of winter behind us, I trust that the remainder of the year is bright and productive for you all. I look forward to bringing you our next edition in early 2007.

Michelle McLean, CEO

CS Update

Staff Update

Wayne Kelcey joined us in January as a Partner in and team leader of our Commercial Litigation group. Congratulations to Leneen Forde and Levent Shevki who have been promoted to Partnership. Leneen is now Partner, Commercial Litigation while Lev is Partner, Business Transactions and Advice (more information on our newest partners can be found in the Profiler section of this issue).

Other new staff include:

Nicole Stevens-Warton, who returns to the fold as a Senior Associate in the intellectual property area after working for the UN for several years.
Tamara Young and Katherine Payne, who have joined us as Lawyers in the Commercial Litigation team. They are involved in reconstruction and insolvency and general commercial litigation.
Dean Katsavos, Catherine Stribley and Eliza Curtain, who commenced Articled Clerkships in March. Daryl Lim and Amelia Sutherland commenced their clerkships in July. All five clerks, along with Dahlia Sable (who commenced in October 2005) and Amy Stewart (who commenced in December 2005), are undertaking rotations in three broad practice areas – Commercial, Commercial Litigation and Property – and a fourth rotation working in Business Development.
Pauline Stapleton is our new Finance and Administration Manager. Rachael Boxshall has taken on the role as HR and Office Manager while Fiona Thomas is on maternity leave.
We also have a number of new support staff - Christina Merlino, Biljana Kerkez, Adele Nye, Sandra Thomas, Rhiannon Dunn, Angela Muser, Carrie Pope, Joanne Sims, Emma Soulsby, and Laura Mancuso.

We welcome back Marelda Hibberd (Senior Associate, Reconstruction and Insolvency) who recently returned from maternity leave.

Kathryn Debont and Adria Stevens were admitted to practice in March after completing their articles. Kathryn has joined our Business Transactions and Advice team, while Adria has joined our Commercial Litigation team. Justin Evans was admitted to practice in August and has joined our Reconstruction and Insolvency team.

All new personnel have settled in well. We look forward to sharing a very successful future with them at Cornwall Stodart.

2006 Client Dinner

Our second annual client dinner was held in February in the River Room at the Melbourne Park Function Centre. Guests were entertained by legendary football coach Tommy Hafey. An interesting and enjoyable evening was had by all. We have begun to organise our 2007 dinner.

Australia Pacific Exchange Limited
In March, Stephen Newman (Partner, Business Transactions and Advice) commenced a part time assignment as General Manager of Compliance and Supervision for Australia Pacific Exchange Limited, an operator of one of the recognised Australian stock exchanges through which securities and managed investment products are traded.

Workplace Relations
In April, Louise Houlihan (Senior Associate, Workplace Relations) and Jane Lawler (Lawyer, Workplace Relations) spoke at the 11th Annual Conference of Employment Law for Human Resource Managers. Jane spoke on harassment and bullying in the workplace and Louise conducted a session on how to mitigate the risks of an ageing workforce.

Pharmacy Industry team
Our Pharmacy team continues to raise their profile in this industry sector. Damien Wurzel (Partner, Business Transactions and Advice) attended a pharmacy conference on the Gold Coast in March, whilst in May, Cornwall Stodart sponsored a “Women in Pharmacy” dinner.

Damien Wurzel and Kathryn Debont also attended the Australian College of Pharmacy Fellows Dinner at the Athenaeum Club.

Family Business
Elizabeth Guerra-Stolfa (Partner, Commercial Litigation), Leneen Forde, Caroline Dew (Senior Associate, Insurance), Elpis Korosidis (Partner, Banking and Finance), Louise Houlihan and Nicole Stevens-Warton hosted clients at the Family Business Australian (FBA) annual Women’s Luncheon at Ripponlea. The lunch proved to be a great networking event and a fun afternoon was had by all.

Cornwall Stodart also hosted a WorkChoices seminar for Family Business Australia members, at which there were attendees keen to learn more about specific issues facing their businesses.

Transport and Logistics Industry team
Louise Houlihan presented a WorkChoices seminar at the Victorian Transport Association’s (VTA) State conference at Aitken Hill in May. Louise’s presentation was invaluable to attendees as it not only touched on all of the industrial relations reforms, but especially those relevant to the transport industry.

Following the conference, further WorkChoices seminars were conducted throughout regional Victoria by Louise and Paul Ryan of the VTA. The seminars received very favourable feedback.

ALFA
Cornwall Stodart is a member of ALFA International, an international network of independent law firms. In February, we hosted an ALFA seminar at the RACV Club focused on the Industrial Relations Reforms. Andrew Robb AO MP, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, was the guest speaker.

In May, ALFA International released a new publication entitled “At work around the world: a twenty country primer of labour and employment laws and regulations”. The Australia section was substantially written by Louise Houlihan and Jane Lawler. For further information on this publication, please contact Louise Houlihan by telephone +61 3 9608 2273 or by email at l.houlihan@cornwalls.com.au

Young Business People Program
Our YBP program has increased in popularity over the last six months and is proving to be an excellent networking opportunity for young business people. In June, the YBP program held a fun-filled “speed networking” function at our offices. The night gave the participants a chance to meet people from different sectors in an enjoyable and relaxed environment and cement some long term professional relationships.

For more information about our YBP program, upcoming events, or to join, please visit our website at www.cornwalls.com.au/ybp.htm

Profiler

It is with great pleasure to announce that effective 1 July 2005, Damien Wurzel will become a Partner, and Louise Houlihan and Sam Monkivitch will advance to Senior Associateships.

WAYNE KELCEY - Partner

Commercial Litigation

Wayne Kelcey leads the Commercial Litigation and Reconstruction and Insolvency teams. He has over 20 years experience in the prosecution and litigation of complex claims from a variety of unique perspectives – including as an Australian Federal Police Officer.

Wayne has represented a number of major Australian corporations in substantial litigation. He has a well deserved reputation for creating “out of the box” solutions to complex and costly disputes.

T: + 61 3 9608 2132

E: w.kelcey@cornwalls.com.au

LENEEN FORDE- Partner
Commercial Litigation

Leneen has been with the firm since 2001. As a commercial litigator, Leneen specialises in corporate and commercial dispute resolution and media law. Her experience includes disputes involving contracts, trade practices, intellectual property, equity and defamation. She also advises in relation to breach of privacy and confidence and suppression orders.

Leneen has completed her Masters of Law specialising in Environmental Law. She has qualified as a mediator through Bond University.

T: + 61 3 9608 2243

E: l.forde@cornwalls.com.au

LEVENT SHEVKI– Partner
Business Transactions and Advice

Levent joined the firm in 2000 as an Articled Clerk, progressing to Senior Associate at the start of 2004 before being elevated to Partner this year. He has a strong commercial and transactional practice focusing on clients in the Extractive industry in all matters relating to their business. He is a member of The Institute of Quarrying.

Lev also leads our Sports and Entertainment area, with particular expertise in sponsorship and marketing law, personality and image rights and event and player management. Levent has advised a number of high profile sporting clients.

T: + 61 3 9608 2278

E: l.shevki@cornwalls.com.au

Client Profile - Profile Marketing

In this issue of Reflections we introduce you to another client, Profile Marketing Pty Ltd. Its principal director is David Holton who has many years of business experience in the direct mail industry.

Who is Profile Marketing?
From its beginnings six years ago as a direct mail facility, Profile Marketing has grown to offer a variety of data, marketing, logistics, management and consulting services.

Profile Marketing looks for innovative solutions to business issues. It has pioneered “Greenmail”, a world first process developed to ensure that mail communications are designed, printed, produced, distributed and disposed of in a manner that minimises adverse environmental impacts while recognising the importance and effectiveness of paper-based communications.

Profile Marketing recently had dialogue with Australia Post regarding the implementation of an electronic bill provider system. This system introduces the concept of an “e-letterbox”. If implemented, it will change the way corporate and government bills are issued and will mean a reduction of both financial and environmental costs.

Cornwall Stodart’s relationship with Profile Marketing
Cornwall Stodart has advised on a number of strategic alliances the company has formed, or is considering forming, with significant corporate organisations, both here and overseas. We have also provided intellectual property advice, particularly regarding the “Greenmail” trademark. We look forward to a continuing and mutually rewarding relationship with this emerging company.

Document Destruction – What to be aware of

On 4 April 2006, the Victorian Parliament passed the Crimes (Document Destruction) Act 2006. The Act amends the Crimes Act 1958 (Vic) to create a new criminal offence of destroying documents that are, or are reasonably likely to be, required as evidence in existing or potential legal proceedings. The amendments took effect on 1 September 2006.

Reason for legislation
The Act is the first criminal legislation of its kind in Australia and is a direct response to the 2002 decision of the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (as representing the Estate of Rolah Ann McCabe, Deceased). In that case, the court held that document destruction occurring before the start of litigation was not unlawful - highlighting the limits of the common law criminal offence of attempting to pervert the course of justice.

New section 254
The Act introduced section 254, to the Crimes Act 1958 (Vic). It provides that a person who knows that a document is, or is reasonably likely to be, required as evidence in existing or potential legal proceedings and either destroys it, or conceals it, or authorises or permits someone else to do so with the intention of preventing it from being used in evidence in a legal proceeding, will be guilty of a criminal offence and liable for imprisonment.

Penalties
If prosecuted under this offence, individuals face up to five years’ imprisonment and/or a maximum fine of $62,886 while companies are liable to a maximum of $314,430.

Corporate Liability
Under the new laws, a corporation will be criminally liable for the destruction of a document by an “officer” of the corporation if the destruction is attributed to the corporation as if it authorised, consented to or intended to perform the act itself. An authorisation or permission by a corporation to destroy a document may be established if it is shown that the corporation has a “culture” that directed, encouraged, tolerated or led to the relevant conduct being carried out. A corporate culture can be defined as an attitude, policy, rule, course of conduct or practice existing within the corporation. Importantly, the liability of the company does not depend on an officer being prosecuted. The corporation’s only defence is to show that it exercised due diligence to prevent a breach by its officer.

What needs to be done?
All corporations should review their policies to ensure that they comply with the new, more onerous, document retention obligations and, thereafter, regularly check adherence to the policies. It is clear from the Act that merely having a document retention policy in place will not be sufficient.

For further information, please contact John Hutchings

on +61 3 9608 2245 or j.hutchings@cornwalls.om.au

Cornwall Stodart is proud to support the Good Shepherd Trading Circle

Cornwall Stodart has a long association with the Good Shepherd Sisters. Our Chairman of Partners, John Hutchings, is a member of the Board of Good Shepherd Aged Services. The firm recently donated a number of computers for use by the Good Shepherd Sisters in their various endeavours.

One such endeavour is the not for profit Fair Trade Project established in 1993. This project aims to support women and their families in situations of severe poverty and disadvantage in African, Asian and Latin America.

The project’s participants produce distinctive and high quality products which are not easily sold on the local markets. The Sisters import the products to Australia and New Zealand and sell them through their Trading Circle stores. The stores are financed by the Sisters and are staffed mainly by volunteers with all proceeds being remitted to the local women.

Trading Circle aims to bring about positive, long-term changes in the lives of the women and their families while promoting the tenet that each person is as important as the world.

The Melbourne Trading Circle store is located at 261 Victoria Street, Abbotford and is open Wednesday to Sunday, 10.00am to 4.00pm. Clothing, toys, bags, pottery, gift cards and homewares and other goods are available for sale.

For more information or the location of other Trading Circle stores around Australia,

phone +61 3 9421 6874 or visit www.thetradingcircle.com.au