CPD Programs

Preparing Complex Bail Applications - Post Reforms 

This session will provide guidance on preparing complex Bail Applications in light of recent cases dealing with:

• Compelling reason
• Exceptional Circumstances
• Unacceptable risk
• Failure to provide reasons

Presented by: 

Stephanie Joosten, Barrister, Victorian Bar

and

Anthony Pyne, Barrister, Victorian Bar

Case Update and New Developments 

This session outlines recent cases and emerging developments in relation to the following key areas:

• Video-Link psychological testing and reports of accused individuals - Are they valid?
• ‘Catfishing’ cases
• Open Courts and Other Acts Amendment Bill 2019 - Impact on suppression laws
• Contempt of court - Online reporting and podcasts of cases and accused
• Youth Offences and Jurisdiction

Presented by: Rosalind Avis, Barrister, Victorian Bar

Negotiating Hard Ball 

Whether you are the prosecutor or acting for the accused, it is critical to constantly sharpen your negotiating skills.

This session will focus on advanced negotiating techniques that can enable you to play hard ball whilst still retaining trust and respect from your adversary.

Presented by: Carmen Randazzo S.C, Barrister, Victorian Bar

Tendency and Coincidence Evidence - How Complex Can It Be? 

This is a complex and evolving area of law where the outcome can turn on subtle considerations of the evidence.
This session will delve into changes in the law in light of recent High Court cases and take a practical approach to the application of tendency and coincidence evidence.

Presented by: Julien Lowy, Barrister, Victorian Bar

Bronwyn Lincoln, Partner, Corrs Chambers Westgarth; Leading Commercial Litigation & Dispute Resolution Lawyers, Doyles Guide 2019

Bettina Evert, Partner, Holman Webb Lawyers

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.

Construction of Contracts – The Continuing Uncertainty 

Whether or not extrinsic evidence can be admitted as part of the interpretation of contractual terms, without the need to first establish ambiguity, continues to remain in question. Despite the passage of time since Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982), and multiple decisions by intermediate courts since, including Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2018] NSWSC, practitioners continue to face uncertainty arising from conflicting decisions.

This session will discuss various recent decisions and address the question of whether ambiguity is required for evidence of surrounding circumstances to be admissible.

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: Jennika Anthony-Shaw, 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 and how it will affect your clients and organisations, including:

• The establishment of a National Sports Tribunal (National Sports Tribunal Bill 2019) and Sports Commission, Sports Integrity Australia;
• Addressing corruption in Australian sport;
• Changes to the ASADA Act to strengthen doping violations (Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019;
• Law enforcement powers, including dealing with ‘information’ under the Privacy Act 1988 (Cth):
• New federal match fixing laws;
• The removal of privilege against self-incrimination; and
• New whistle-blower protections.

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

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:

• The latest developments relating to concussion in sports;
• Latest cases;
• Duty of care and the intersection with workplace health and safety;
• Potential for class action/s in the future.

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

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

Binding Child Support Agreements 

The Child Support system can be confusing and complex. Debts can easily accrue based on changing circumstances including changes in care, providing the wrong information, or missing or making incorrect payments. While a Binding Child Support Agreement can provide certainty between parties, it is vital that practitioners address all current and future aspects of Support. Being an enforceable Agreement by the Court, getting it wrong can have significant ramifications for you and your client if it is set aside.

This session will address issues including:

• Drafting clearly defined terms within Binding Child Support Agreements;
• How to tailor an Agreement to best suit your client;
• What payments can and cannot be covered, including periodic and non-periodic child support;
• The legal requirements that must be covered;
• The ramifications of getting things wrong.

Presented by: John Spender, Principal, Kennedy Partners

Superannuation Splitting Orders 

One of the most technical areas of Family Law, drafting effective Superannuation Splitting Orders is a vital skill for family law practitioners. Requiring the key knowledge of the Superannuation Law aspects of the Family Law Act 1975, it is a challenge dealing with this highly technical and increasingly complex area of law.  

This session will offer:

• Practical tips on how to draft effective superannuation splitting orders;
• A look at the nuances in drafting orders so they comply with the legislative requirements of the Family Law Act 1975;
• Key risks and how to avoid them;
• Proper process and procedure, and your responsibilities following finalised Orders, including correspondence with Superannuation Funds.

Presented by: Aaron van der Heyden, Principal, Accredited Family Law Specialist, Tisher Liner FC Law

Spousal Maintenance 

Spousal Maintenance will only be payable when certain criteria is met. This usually relates to a large disparity in income between parties, financial needs and financial capacity. As there is no set formula for how much spousal maintenance should and will be paid, family law practitioners should be aware of when spousal maintenance should be negotiated and how to draft the relevant orders to ensure their client will receive the ongoing support into the future.

This session will cover issues including:

• How and when spousal maintenance arises;
• Drafting clear and effective Orders;
• Excluding spousal maintenance from Binding Financial Agreements;
• Advising your client on ‘reasonable expenses’ and when to make an Application to the Court in the event of disagreement.

Binding Financial Agreements 

A Binding Financial Agreement (BFA) can be entered into before, during and after marriage, or de facto relationship, and can be a minefield for family law practitioners. In light of ongoing litigation before the courts to have Binding Financial Agreements set aside, many family law practitioners are concerned about preparing or signing them.  

This session will focus on the practical aspects of drafting Binding Financial Agreements and examine:

• The importance of understanding the legislative requirements prior to preparing or signing a BFA;
• Practical tips and issues to consider when drafting;
• What should form the content of the Agreement – Can there ever be ‘too much detail’?;
• Key risk areas to be aware of;
• How to spot the ‘future trouble client’ and how to take extra precautions.