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: December 2004
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,another
exciting year is near completion.
In the past six months we have received instructions on some
significant matters and secured some exciting new clients.
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Acting for a financial institution in reviewing their securities
for major pharmacies.
•
We have been involved in the establishment of a new retail
outlet - Anaconda. Anaconda is different from old-fashioned
camping stores – something big, fresh and exciting. Not
another barn packed with stuff, but an adventure in itself – more
of an experience than a store, really. Anaconda is for all
outdoor types, from hardcore adrenalin junkies to families
on holiday and the whole spectrum of people in-between. For
your adventure needs, go to www.anaconda.com.au. We advised
on the structure and the protection of intellectual property
rights, and reviewed advertising materials and promotional
activities.
•
Acting for the principal shareholder of a company involved
in an alleged impropriety by the Managing Director.
•
Congratulations to our Insurance team who have been successfully
appointed to the panel of Suncorp-Metway.
• We secured a significant property development client
involved in several large residential developments in and around
Melbourne.
In sports news, we had a successful outing to the
Billiards Room of the RACV Club where our team
defeated a gallant
Bentleys MRI. There are plans for a re-match in
the new year. The
Whackers (our mixed netball team) endured another
long, hard season
and were unlucky not to finish in the top four
of their division – which
this season was a higher grade than in previous
years. At the recent Law Institute of Victoria
Fun Run, our team of runners
and walkers finished in the top five of their respective
age groups and divisions.
The last six months have been an exciting period for us with
a number of new faces joining the firm. Our industry practice
groups - in particular pharmacy, banking and finance, and transport
- have continued to consolidate their position in their respective
markets and recent significant instructions should see the
firm off to a successful start in 2005.
We wish everyone a very Merry Christmas and a safe new year.
Michelle
McLean,
CEO
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Welcome back to Fiona Thomas, who rejoined the firm in July as
Assistant Office Manager, working with our CEO and Operations Manager.
Leneen Forde (Consultant) will be returning
to us in February after having her second child, a boy, Frances
Edward (Ned) Hargraves.
Whilst our 2004 Articled Clerks are nearing the completion of
their year, we look forward to greeting three new Articled
Clerks who will join us in 2005. They are Adria Jerrard and
Katherine De Bont and, in September 2005, Dahlia
Fried. All
three will spend 12 months rotating through our various
practice areas and will be admitted as lawyers in early 2006.
We would also like to welcome Jane Lawler who commenced her articles
with us in October.
Seasonal Clerks Chris Skordas, Amelia Sutherland, Edward
Wilson,
Kaye Lelawani, and Dean Katsovdas have just completed a four-week
placement with us during their semester break from university
studies. All now have some appreciation of the life of a lawyer.
We wish them well in their future studies.
Our YBP group has hosted a variety of functions this year. In
October, the YBP Education Seminar series was launched with
Michael Blake (Cromwell Corporation) and Troy Williams (PM
Capital Limited) presenting their views on "Investment
Strategies and Wealth Creation". The event was attended
by over 60 people who were impressed by the suggestions made
by the presenters.
In a more light-hearted event, members of the YBP program recently
tested their knowledge at the YBP Trivia Night. The event was
held at the Mitre Tavern and was a resounding success characterised
by fierce competition.
In July, Damien Wurzel (Senior Associate), John
Hutchings (Chairman
of Partners), Paul Cooley (Senior Associate), and Wendy
Bracciale (Lawyer) conducted a session at the Community
Pharmacy Southern Convention and Exhibition on “Future Pharmacy Owners” aimed
at those wanting to become a pharmacy owner, whether alone
or in a partnership.
In December, Damien Wurzel (Senior Associate) and Business Transactions
Adviser Garry Eather, participated in a selected panel for The
Pharmacy Guild, to advise on the ramifications of the new legislation
for pharmacists in Victoria.
Congratulations to John Chamberlin (Partner) who achieved the
milestone of having been a partner in a city law firm for 40
years.
Cornwall Stodart sponsored the Industrial Relations Society of
Australia at its National Conference held in Melbourne in late
October. The conference was attended by over 450 delegates,
and doubled as the celebration of over 100 years of conciliation
and arbitration in Australia.
Our Oaks Day Luncheon was an outstanding success with all that
attended enjoying the comforts of the “on the rails” car
park. Many were more interested in socialising than venturing
onto the sodden race track.
Damien Wurzel (Senior Associate)
and Sam Monkivitch (Lawyer)
displayed their golfing prowess at the AIPM Golf Day at Yarra
Yarra Golf Club. Cornwall Stodart sponsored a Par 3 hole on
the course for the day. Congratulations to Damien and Sam who
managed to top the leader-board for the day.
We have continued to promote our Tax Sharing Agreement and Tax
Funding Agreement products at various conferences throughout
the country. These products are continuing to generate interest.
For further information on these products, go to www.cornwalls.com.au/tsa.htm
Paul Cooley (Senior Associate) has been
busy presenting an overview of the Common Rule awards that
will affect Victoria from 1 January 2005. Paul has also spoken
on the changes to superannuation, employee choice of fund legislation
(effective 1 July 2005), workplace surveillance and employee
privacy.
Louise Houlihan (Lawyer)
and Paul Cooley have conducted a seminar on behalf of a major
transport client on the topic of “Chain of Responsibility”.
This is a set of new laws being introduced across Australia.
The central aspect of these laws is that any party who has a
degree of control or influence in a transport operation may be
potentially liable for breaches of the law by others. For further
information, please contact Louise on +61 3 9608 2273 or l.houlihan@cornwalls.com.au.
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| Profiler |
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John
Chamberlin - Partner
John has a wide reputation in the business
and legal community for expertise in complex property transactions.
He has substantial knowledge of commercial property matters,
including land tax and dealings with government agencies.
John has been a regular contributor to government forums on
taxes and levies. He is also an expert in probate, will making
and general family matters.
As a former managing partner of the firm, John has assisted
with the development of Cornwall Stodart over the years and
continues to be relied upon for his sensible advice.
Ph: +61 3 9608 2121 Email: j.chamberlin@cornwalls.com.au.
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Elizabeth
Guerra-Stolfa - Partner
Elizabeth is a partner in our Commercial Litigation
team at Cornwall Stodart.
Elizabeth is highly experienced in large scale and complex litigation.
She practices principally in the Federal Court of Australia and
the Supreme Court of Victoria, advising in contracts, trade practices,
professional negligence claims and general commercial matters.
Elizabeth has a particular interest in family business, and holds
a position on the Victorian Committee of Family Business Australia.
A qualified mediator, Elizabeth also practises extensively in
the area of alternative dispute resolution. Elizabeth has a wide
range of professional involvements. They include: Lawyers Engaged
in Alternative Dispute Resolution (LEADR); Supreme Court Panel
of Mediators; LEADR Panel of Mediators; and the Family Business
Australia Panel of Mediators.
Ph: +61 3 9608 2144 Email: e.guerra@cornwalls.com.au
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Marelda
Hibberd - Senior Associate
Marelda is a Senior Associate and a member of
the firm's Reconstruction and Insolvency team. She is experienced
in various aspects of reconstruction and insolvency, and has
worked on many high profile liquidations, administrations and
receiverships, and bankruptcy examinations.
Marelda has worked on a variety of large and small scale bankruptcy
matters and in that context, has conducted public examinations,
creditors voidable settlement proceedings and given general advice
to Trustees.
Marelda is experienced in conducting voidable preference claims,
general contract claims, advising on retention of title issues,
dealing with remuneration applications and advising insolvency
practitioners generally.
Marelda is a Committee Member of the International Women's Insolvency
and Restructuring Confederation (IWIRC) and a member of the Young
Lawyers and Litigation sections of the Law Institute of Victoria.
Ph: +61 3 9608 2241 Email: m.hibberd@cornwalls.com.au
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| Workplace
Relations Developments in 2004 - Louise Houlihan |
There were a number of significant legal developments in the
area of workplace relations in 2004. The biggest five were:
1 The re-introduction of common rule awards into Victoria – commencing
1 January 2005.
2 The redundancy test case decision in the Australian Industrial
Relations Commission that increased severance entitlements
and extended redundancy benefits to employees of small business
for the first time.
3 The High Court’s Electrolux decision clarifying that
industrial agreements (certified agreements and AWAs) can only
contain matters pertaining to the employment relationship.
4 The October re-election of the Howard Government and particularly
the Senate majority that the Government will enjoy from July
next year. The Government has already indicated that a raft
of new amendments to workplace relations laws are likely to
be pursued in the second half of 2005.
5 The Maxwell review of the Occupational Health and Safety
Act, released in March this year. The Victorian Government
has introduced a new Occupational Health and Safety Bill into
parliament based on the recommendations of the review. Some
of the notable amendments include:
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easier prosecution of senior officers of a corporation;
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specific penalties for specific offences; and
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increasing the maximum fines for a breach of the general safety
duties from the current $250,000 (for a company) and $25,000
(for an individual) to $920,250 and $184,050 respectively.
For further information, please contact Louise Houlihan on
+61 3 9608 2273 or l.houlihan@cornwalls.com.au
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Are You A Defendant
To Litigation?
Protect Yourself With A Security For Costs Application
- Elizabeth Guerra-Stolfa and Renee Pollak
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If you are a Defendant to litigation, you will often need
to invest significant funds in legal costs to defend the matter,
without knowledge as to whether, if successful at trial, your
investment will ever be returned.
When Plaintiffs institute proceedings, they assume the risks
inherent in litigation, that they may be unable to recover
costs from Defendants. Defendants, on the other hand, do not
assume the risks of litigation out of choice. Defendants are
compulsory parties to litigation, and therefore the court rules
require, in certain circumstances, that Plaintiffs provide
security for Defendants’ costs. Apart from when a Defendant
brings a counterclaim against a Plaintiff, as a general rule,
an order for security will not be made against a Defendant.
In exercising its discretion as to whether to order a Plaintiff
to provide security for costs, the court carries out a balancing
exercise. On one hand, it weighs the injustice to the Plaintiff
if prevented from pursuing a proper claim by an order for security.
On the other hand, it weighs the injustice to the Defendant
if no security is ordered and the Defendant is unable to recover
its costs from the Plaintiff when its defence succeeds.
The factors a Court will take into account when exercising
its discretion to grant security or not, include:
1. a Plaintiff who is impecunious will not for that reason
alone be ordered to give security for costs. In a recent case,
The Airtourer Co-operative Limited v Millicer Aircraft
Industries Pty Limited [2004] FCA 1400, Justice Branson of the Federal
Court quoted Justice Moore in Chang v Comcare Australia
[1999] FCA 1677 where Justice Moore said that “while impecuniosity
is not, by itself, sufficient to warrant an order for security,
it is generally a relevant consideration”. In making
an order in the Airtourer Co-operative case that the Applicant
provide a relatively modest amount of security, his Honour
Justice Branson identified other relevant considerations (in
addition to the Applicant’s impecuniosity);
2. an Applicant who had a limited pool of funds available
to it, which it planned to utilise to meet its own legal costs,
but which it did not plan should be available to meet any costs
order made in favour of the Respondents;
3. the Plaintiff’s prospects of success;
4. whether the Plaintiff’s proceeding is merely defensive;
and
5. whether a security for costs order would stultify the
pursuit of a legitimate claim.
It is imperative that an application for security is brought
promptly, so that if an order is made, it does not unfairly
prejudice a Plaintiff who has incurred a considerable liability
for costs in the litigation.
Upon application to the court, the court may order that the
Plaintiff give security for costs on or before a specified
date or time or stage in the proceeding. In other cases, the
court may order that the proceeding be stayed until security
is given. Whatever the form of the order, the court rules provide
that if the Plaintiff fails to give the security required by
the order, the court may dismiss the claim. This makes it a
useful tool for Defendants, particularly in circumstances where
a Plaintiff lacks the funds to provide security as ordered
by the court.
For further information, please contact Elizabeth Guerra-Stolfa
on +61 3 9608 2144 or e.guerra@cornwalls.com.au or Renee Pollak
on +61 3 9608 2209 or r.pollak@cornwalls.com.au
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