CPD Programs

Redacting Documents – Errors, Risks and Consequences 

Redacting electronic documents is a necessary part of litigation and commercial matters, and this session will highlight the serious consequences when redaction hasn’t been carried out correctly including:

• Potential breaches of court orders
• Potential breaches of client confidentiality
• Waiver of privilege
• Release of commercially sensitive material;

all of which have serious consequences for both clients and their lawyers.

Knowing how to properly redact documents is an essential requirement of practice and this session will outline methods of ensuring proper redaction and minimising associated risks. With reference to key cases, leading presenter Dr Sue McNicol QC will outline the critical do’s and don’ts when faced with redaction of electronic documents.

Presented by: Dr. Sue McNicol QC, Barrister, Victorian Bar

Taxation Considerations and Implications in Damages and Settlement Agreements 

Disputes between parties result in settlements which may be the product of mediation, court orders or agreement.  Do you know the taxation considerations and implications that should be considered when negotiating settlements?

When a matter proceeds to trial and damages awarded, your client should already be aware of the potential taxation implications. Whilst the litigation lawyer is not expected to also be a tax expert, are you confident you know enough about the potential taxation problems that can arise simply because of ignorance about the right questions to ask the client?

This session will provide guidance on the taxation matters you need to turn your mind to when advising clients in pre-settlement negotiations and pre-judgment discussions.

Presented by: Adam Dimac, Senior Associate, Hall & Wilcox

and

Rachel O'Donnell, Special Counsel, Hall & Wilcox

Mistaken Payments and the ‘Change of Position’ Defence 

Since the High Court in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) confirmed that the ‘change of position’ defence can still apply in certain circumstances where a payment has been made by mistake, questions remain unanswered as to its application.

This session will examine the relevant cases, discussing when the ‘change of position’ defence may still be applicable, and the factors that may influence the outcome where an otherwise inequitable payment has been made by mistake.

Presented by: Marcus Clarke Q.C., Barrister, Victorian Bar

Construction of Contracts – The Continuing Uncertainty 

There has been considerable controversy as to whether extrinsic evidence is admissible to interpret a written contract only where the language of the contract is ambiguous or whether it can be used at the outset to ascertain the meaning of contractual language in its context. The debate has entered on the expression of the ‘true rule’ in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982).

This session will trace developments since Codelfa, considering recent decisions by the High Court of Australia and intermediate appellate courts and demonstrate with case studies how courts approach the question of admissibility of extrinsic evidence to the task of contractual interpretation.

Presented by: Dr Vicky Priskich, Barrister, Victorian Bar

Contractual Penalties and Unconscionability 

Between Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA and Australian Securities and Investments Commission v Kobelt [2019] HCA this session will explore the current state of play with respect to contractual penalties and unconscionability.

Presented by: Daniel Kinsey, Barrister, Victorian Bar

Consequential Loss – Recent Decisions and Practical Implications 

Australian courts have moved away from characterising ‘consequential loss’ in accordance with the second limb of the rule in Hadley v Baxendale. And with courts in different jurisdictions continuing to interpret the term in different ways, it is becoming increasingly difficult to predict with certainty what losses will be recoverable in the event of a breach. This session will provide a review of recent cases dealing with consequential loss and consider their implications. It will also provide guidance on drafting contracts to achieve more certainty as to the extent of the limitation of liability.

Presented by: Jeremy Zimet, Special Counsel, Phi Finney McDonald

Sporting Figures, Free Speech and the Employment Contract  

The recent high-profile dispute involving Rugby Australia is now set for a showdown, with many commentators suggesting it will lead all the way to the High Court. Given the complexity of this case, which touches on Codes of Conduct, employment contracts and sporting figures expressing views in public forums, this session is designed to distil the most significant issues arising from this case that apply to your sports law practice.

This session will discuss issues including:

• Codes of Conduct - What is reasonable?

• Should the sporting body be entitled to regulate private views being aired in public?

• Is it appropriate for sporting bodies to take note of public opinion when developing policies?

Presented by:

Georgina Schoff QC, Barrister, Victorian Bar

and

Elle Nikou Madalin, Barrister, Victorian Bar

Sports Law Developments and Case Update  

This session will address recent cases and developments in Sports Law including:

• Restraint of Trade Clauses (following the Federal Court decision on the National Rugby League’s ‘No Fault Stand Down’ Rule);
• Update to advice for sporting clubs following the Royal Commission into Institutional Child Abuse and requirement for Code of Conduct and Child Safe Policy;
• Social media ‘trolling’ and legal remedies;
• Intellectual property issues surrounding ownership and reproduction of sports players photographs;
• Proceedings between American sports publishing website ‘The Players Tribune’ against new Australian sports website ‘PlayersVoice’; and
• Regulation of gender and biological differences and its impact on sport.

Presented by:

Mark Rinaldi, Barrister, Victorian Bar, and

Chris Oldham, Barrister, Victorian Bar.

Sports Law in Australia – Governance, Regulation and Integrity  

Late last year Mr. James Wood QC released the most in-depth report into the integrity of Australian sports ever undertaken, titled ‘Review of Australia’s Sports Integrity Arrangements’. It addressed key national and international threats to sporting arenas both here and overseas.

This session will take an in-depth look into the Report, progress towards implementing key recommendations, and how it will affect your clients and organisations, including:

• The establishment of a National Sports Tribunal (National Sports Tribunal Act 2019) and proposed establishment of Sports Integrity Australia (the enabling Bill having lapsed);
• Proposed changes to the ASADA Act to strengthen doping violations (the Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019 having now lapsed);
• Law enforcement powers, including dealing with ‘information’ under the Privacy Act 1988 (Cth); and
• Propsed new federal match fixing laws, whistle-blower protections and other matters.

Presented by: Ian Percy, Barrister, Victorian Bar

Legal Responsibility of Sporting Organisations - Mental Health and Other Workplace Claims 

The responsibility of sporting organisations to provide a safe workplace is clear, but where does legal liability begin and end?

Is the professional sporting body the same as any other employer, or is there a layer of complexity arising from expectations that the media and public has towards sporting clubs and players that increases the number of steps that the employer needs to take, in order to adequately fulfil its legal obligations?

There is now an expectation that every sporting organisation will have the tools and policies in place to identify, prevent and or deal with player and staff issues including mental health concerns such as anxiety, gambling and drug addictions. Can this also extend to post employment issues such as financial and health management?

This session will discuss the policies that sporting organisations should have in place to deal with current workplace issues, as well as the potential for ongoing liability following the departure of players and staff from clubs, and the potential for future claims in the absence of proper workplace policies and procedures.

Presented by: Amy Hando, Barrister, Victorian Bar

and

Mark Goldblatt, Barrister, Victorian Bar

Professional Sports Contracts – Advanced Drafting Skills 

Sports Law is a unique practice area and requires care and precision when drafting complex employment and other contracts. This is the case even for experienced Sports Lawyers, particularly as sponsorships, social media and other evolving issues often overlap.

This essential session will outline strong drafting techniques and will cover:

• Common complex questions arising in Sports Law Employment contracts;
• Contracts with minors;
• Restraints;
• The intersection of the sporting employment contract with sponsor and endorsement agreements; and
• Termination clauses

This session is designed to take your drafting skills to a more advanced level.

Presented by: Paul Horvath, Principal, Sports Lawyer

Concussion in Sports – Risks, Rates and Liability  

As more and more discussion and studies continue to evolve around the issue of concussion in sport, so too does the number of players retiring from sport due to concussion related injuries, and the number of cases being issued by former players seeking compensation.

This session will look in-depth at the legal liability surrounding this area including:

• definition of concussion: more than a transient functional dysfunction;
• symptoms and diagnosis;
• long term consequences: post concussive syndrome in young/older players, and differences in males and females;
• repetitive concussion;
• definition and controversies around chronic traumatic encephalopathy;
• recovery after a concussion;
• current international guidelines for the diagnosis of sport concussion and how they changed the approach of concussion management at sideline in Australia;
• examples of lawsuits around sport concussion in Australia including class actions from the US.

Presented by: Cristina Morganti-Kossman, Adjunct Associate Professor, Monash University

Where’s the ‘Good Faith’ in Sporting Contracts?  

It is always exciting for a sporting club to sign a new player to a contract and their club. It is often met with fanfare and can lead to a jump in sponsorship, memberships and revenue. However, it is not uncommon for players to break contracts early if they are unsatisfied or wish to pursue successful opportunities elsewhere.

With hundreds of thousands of dollars on the line, where does the duty of ‘good faith’ in sporting and commercial contracts come into play compared to other industries?

This session will take a look at recent high-profile examples and examine where the duty of good faith lies in the current context of sports and commercial law contracts and the issues you need to consider when you are drafting your client’s next contract.

Presented by: Margo Harris, Barrister, Victorian Bar

The Hayne Royal Commission, Insurance Industry and Legislative Change - Where To From Here? 

There is no doubt that insurance cover gained automatically by Australians through their employer-sponsored membership of a superannuation fund is good public policy. However, systemic issues within our financial institutions, highlighted by the evidence put before the Hayne Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, and the propensity of the insurance industry to dilute terms and definitions often leaves some insurance policies worthless to the consumer.

This session will cover:

• key findings of the Hayne Royal Commission
• the evolution of TPD definitions within superannuation insurance policies
• the insurance industry’s failed attempt at legislative change regarding funding of medical costs and rehabilitation.

Presented by: Katherine Bedford, Lawyer, Maurice Blackburn Lawyers

New Developments in Superannuation Law 

This session will examine the impact of recent and upcoming changes in superannuation law, including:

• Treasury Laws Amendment (Putting Members' Interests First) Act 2019;
• Treasury Laws Amendment (Protecting Your Superannuation Package) Act 2019;
• Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Act 2019;
• The Federal Government's commitment to extend the Banking Executive Accountability Regime (BEAR) to RSE licensees; and
• A number of other regulatory updates.

Presented by: Stephanie Malon, Managing Associate, Allens

and

Geoff Sanders, Partner, Allens

How Vulnerable Are Your Staff - Cyber Threats and Security 

It's easy to be fooled by cyber criminals. Cyber criminals are better than ever at targeting businesses and are always a step ahead. Psychological tools and manipulation are now being used to gain access to confidential information.  As you increase your technology protections how can you be confident that it's going to make a difference?  Your staff are prime targets for cyber criminals to groom and then infiltrate your organisation, and staff are often unaware they have been used to gain access to systems and confidential information, until it’s too late.

This session will outline how your staff and organisation may be targeted and how to put simple yet effective training and protections in place to block common vulnerable entry points.

Presented by: Craig Macaulay, Data Scientist, Phi Finney McDonald

Advertising, Forecasting, Disclosure, Inducements 

This session will address the risks and consequences when funds cross the line into misleading and deceptive conduct and/ or misconduct.

Presented by: Nawaar Hassan, Barrister, Victorian Bar

Hot Topics - Hear from a Panel! 

• Elder and Family Financial Abuse - Use of Instruments including Powers of Attorney and unauthorised access to superannuation funds;
• Conflict of Duty - Acting in the best interests of members and stakeholders;
• Trustee Duties and Discretions / Reasons;
• Productivity Commission Inquiry Report -Superannuation: Assessing Efficiency and Competitiveness.

Presented by:

Heather Gray, Partner, Hall & Wilcox;

Anne MacNamara, Partner, Hall & Wilcox;

and

Jim Bulling, Partner, K&L Gates

Trustee Responsibilities and Overpayments 

This session will discuss:

• Recovery of overpayments on claims;
• Can professional indemnity insurance apply;
• Settlement of claims;
• Defences to claims.

Presented by: David Robertson QC, Barrister, Victorian Bar

Will Rectification Applications – Complex Probate Proceedings

A court may make an order to rectify a will to carry out the intentions of a will maker, if the court is satisfied that the will does not carry out the will maker’s intentions where:

• a clerical error was made, or

• the Will does not give effect to the will maker’s instructions.

This session will discuss the process and implications of rectification applications and will include:

• Application for rectification of the will pursuant to Section 31 of the Wills Act (1997);

• Seeking clarification of the will pursuant to Supreme Court (General Civil Procedure) Rules 2015;

• Evidence of the will-makers intentions – the application process, preparing/ what is to be included in the Summons;

• Time limitations in Victoria and other states and territories;

• Outline of the deficiencies the court found in RE Hely; Application by Arbuthnot & Donohue (2018) VSC 614;

• Recent case update.

Presented by: Ines Kallweit, Principal Solicitor and Accredited Wills & Estates Specialist, KHQ Lawyers - Preeminent Wills & Estates Litigation Lawyer, Doyle’s Guide 2018.

Crisp Orders and Portable Life Interests

This session will cover:

• What is a Crisp Order?

• Pro’s and Con’s of Crisp Orders

• When alternative accommodation is required for the surviving spouse – eg. Retirement village/aged care facility bond etc

• Beneficiaries disputing Crisp Orders;

• Issues arising in blended families;

• Case studies.

Presented by: Mercia Chapman, Senior Legal Counsel, Equity Trustees

Challenging Superannuation Death Benefits – Remedies Available for Aggrieved Beneficiaries and Dependants

Superannuation death benefits may make up a substantial pool of a deceased assets, and whether you are acting for the Executor or the beneficiaries, understanding the rules and dealing with the trustee of a superannuation fund is not straightforward. This session will discuss the rules surrounding a fund trustee’s decision and the remedies available to an aggrieved beneficiary or dependant. This session will cover:

• The Superannuation Trustee’s discretion;

• Preparing a death benefit claim;

• Contesting a Superannuation Trustee’s decision;

• Taxation of death benefits;

• The Complaints and Appeals Process in the Courts;

• The AFCA Approach to Superannuation Death Benefit Complaints;

• Notable and recent cases.

Presented by: Michael Clohesy, Principal Lawyer, Aitken Partners

and

Jack Conway, Associate, Aitken Partners

Testamentary Trusts - Tax Benefits and Asset Protection

A Testamentary Trust is created by a will and will come into effect when a person dies. Whether you have been instructed to draft a testamentary trust or act for a client who has received inheritance via testamentary trust, it is vital that the trust is implemented correctly and based on sound legal advice.

This session will cover:

• The tax benefits of testamentary trusts;

• Tax planning and asset protection;

• Dealing with vulnerable beneficiaries – minors, warring siblings, divorce, health issues including addiction, and/or disability;

• Managing bankruptcy and litigation risk;

• Income streaming;

• The advantages and disadvantages of testamentary trusts;

• Case updates and examples.

Presented by: Jennifer Dixon, Practice Leader, Accredited Wills & Estates Specialist, Moores

A Matter of Trust – Family Trust Disputes

This session will cover the following:

• The use of Discretionary Trusts in estate planning;

• Vesting and CGT concerns;

• Trustee duties;

• Dispute resolution clauses;

• “Unsatisfactory” allocations of income;

• An overview of recent cases including Trani v Trani (2018) VSC 274.

Presented by: Sandra Karabidian, Barrister, Victorian Bar

Trust Deed Variation Clauses 

This session will cover:

• Interpreting Variation Clauses;

• Tips when Drafting Variation Clauses and Powers;

• Problematic Trust clauses;

• Preparing Deeds of Declarations of New Powers;

• Alternative options such as court powers, winding up the trust, new trust etc

Presented by: Ron Jorgensen, Partner, Thomson Geer Lawyers

Session 1

Allegations of Inappropriate Behaviour by Staff Members or Contractors 

Responsibilities and options when notified that a staff member or contractor/s has acted inappropriately towards a child in your care:

• Questions to ask and information required
• Staff personal liability vs school liability
• Legal responsibilities towards child/ren and staff member/contractor.
• Options for conducting investigation
• External vs internal investigator

Presented by: Fiona Knowles, Barrister, Victorian Bar

Session 2

Family Law Issues and The School’s Role 

Responsibilities and risks in interpreting and complying with various Court requirements. This session will discuss:

• Parenting Orders, Parenting plans
• Intervention Orders
• Complying with Subpoenas
• Student and parent privacy

Presented by: Jason Walker, Partner, Gadens

and

Louise Dorian, Special Counsel, Gadens

Session 3

Data Breaches and the Impact on Your School 

The Mandatory Data Breach laws impose legal responsibility on organisations, including schools, to protect student and staff personal data and information. Breaches can have serious consequences. Recent high profile examples show the adverse impact a breach can have on the reputation of a teaching organisation.

This session will outline:

• What is the data breach regime
• How does it apply to schools
• What data must be protected
• What to do if a breach occurs and your legal reporting obligations

Presented by: Dudley Kneller, Partner, Gadens

Session 4

A Safe Workplace and Duty of Care 

A school has a responsibility to provide a safe workplace including risks to mental and physical health. This session will discuss the schools’ responsibilities and common risks and causes including: 

• Abuse from parents including online criticism and abuse
• Long hours and report writing
• Managing student behavioural and personal issues

Presented by: Lucy Line, Barrister, Victorian Bar