Australian Corporate Lawyer - Winter 2015

theAustralian 

corporatelawyer 

June 2015, Volume 25 – Issue 2 

The official journal of 

acla 

australian corporate 

lawyers association. 

a member of the 

DELIVERING VALUE 

TO THE BUSINESS 

IN THIS ISSUE: 

Maximising Company Valuation 

Adding value to the C-suite 

Cross-border Contracts 

Personal Branding 

Sponsored by

Most Innovative 

Australian Law Firm 

2014 Financial Times Asia-Pacific 

Innovative Lawyers Awards 

Most Innovative 

Law Firm 

2014 BRW Client Choice Awards 

Best Law Firm 

Revenue $50 to $200 million 

2014 BRW Client Choice Awards 

Innovation 

Seeing what others 

haven’t seen. 

Innovation involves taking conventional, 

established practices and making them better, 

smarter, more successful. 

At Gilbert + Tobin, we’ve been a leader in 

innovation in the legal market for over 25 years. 

We have assisted leading Australian and 

international businesses with innovative solutions 

to their commercial challenges. This is why Gilbert 

+ Tobin has become the firm of choice for our 

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Sydney 

Melbourne 

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INSIDE… 

Volume Number 25 Issue Number 2 





Features 

6 Member Profile: Sally Glover 

Yum! Restaurants International 

7 The Value of Acting with Courage 

11 My Experience: New to In-House 

13 2015 In-house Counsel Report: 

An indispensable resource for in-house lawyers 

15 What Will You Do When a Serious 

Incident Hits Your Business? 

19 Make It So: An Australian Bank Banishes 

Hourly Fees 

20 Directors’ Duties 

Additional safeguards and implications in relation 

to the Corporations Act 

22 Personal Branding and Engaging Your 

Key Stakeholders 

24 What the Quality of Responses Says About 

Your RFT 

25 How to Nail That Tender Response 

29 Australian Anti-Corruption Proposal 

To mandate disclosure of offshore mining and 

resources payments to governments 

31 Seven Reasons Cyber Risk Should Be On The Radar 

of Corporate Counsel 

34 Maximising Company Valuation 

36 General Counsel: Adding Value To The C-Suite 

38 Cross-Border Contracts – Beware, Things 

May Go Wrong! 

40 Update From the Courts 

Regulars 

5 President’s Report 

14 ACLA News 

ACT / VIC / WA 

18 ACLA News 

SA / TAS / NSW 

28 ACLA News QLD 

42 New Members 

Australian Corporate Lawyers Association 

ACN 003 186 767 

Editorial 

Editor: Emma Langoulant 

T: (61) 3 9248 5548 

E: emmalangoulant@acla.com.au 

Journal Sponsorship and Advertising 

Are you interested in reaching 4,000 ACLA 

members Australia-wide? Please contact: 

Emma Langoulant 

T: (61) 3 9248 5548 


If you are interested in other sponsorship 

opportunities with ACLA, please contact: 

Nicole Greenwell 

T: (61) 3 9248 5511 

E: nicolegreenwell@acla.com.au 

Letters to the Editor 

You are invited to submit letters to the editor by 

email: emmalangoulant@acla.com.au 

Articles for Publication 

If you have an article you would like to submit 

for publication, please contact: 

Emma Langoulant 

T: (61) 3 9248 5548 


Contributions are included at ACLA’s discretion 

and may be edited. 

General Enquiries 

T: (61) 3 9248 5500 

E: membership@acla.com.au 

W: acla.com.au 

Publisher 

The Australian Corporate Lawyer is published by 

the Australian Corporate Lawyers Association. 

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W: epress.com.au 

Disclaimer 

The opinions, advice and information contained in 

this publication may not be shared by the Australian 

Corporate Lawyers Association. They are solely offered 

in pursuance of the object of the Australian Corporate 

Lawyers Association to provide an information service 

to corporate lawyers. 

The Association issues no invitation to any member 

or other person to act or rely upon such opinions, 

advice or information or any of them and it accepts 

no responsibility for any of them. It intends by this 

statement to exclude liability for any such opinions, 

advice or information. Readers should rely on their 

own enquiries in making any decisions which relate to 

the content here. 

acla 




VOLUME 25, ISSUE 2 – JUNE 2015 

3

theAustraliancorporatelawyer 

FAST FACTS 

While 66% of in-house counsel take on any work that 

arises, 23% of all in-house counsel are allocated to 

a core legal practice area or speciality, and a further 

11% work with a core business team. 

89% of in-house counsel rate contracts and 

commercial work in the top-5 areas of work. 

60% of legal functions are under high to extreme 

pressure due to resource and budget limitations, 

up slightly from 55% in 2012. 

77% of legal functions predict workflow to increase 

over the next two years, with 20% predicting it will 

remain the same and only 3% predicting a decrease. 

All statistics have been taken from the 2015 In-house Counsel Report: Benchmarks and Leading Practices. 

4 VOLUME 25, ISSUE 2 – JUNE 2015

The official journal of 


lawyers association. a member of the 

June 2015, Volume 25 – Issue 2 

Sponsored by 

acla.com.au 

PRESIDENT’S REPORT 



acla 



Adrian Goss 

National President 

It’s an incredibly exciting time for ACLA. 

The alliance with the ACC will deliver 

significant additional resources to 

members as well as increasing the extent to 

which we, as an organisation and as members 

of that organisation, are connected to other 

in-house counsel globally. There’s a huge 

amount of work going on behind the scenes 

to make the alliance a reality. The National 

Office team are going above and beyond in 

this regard and their efforts are a testament to 

their dedication and professionalism. 

Through weekly emails, we’re giving you a 

taste of the benefits that the alliance will 

deliver. It’s clear that members are excited 

by the prospect – we are getting the highest 

open rates for those emails that we’ve ever 

received. While there will be some immediate 

benefits, many of the benefits will develop 

organically over time, principally through 

formal and informal engagement. When the 

alliance ‘goes live’ on 1 July, I encourage you to 

explore the possibilities for such engagement. 

ACLA has also recently launched the 2015 Inhouse 

Counsel Report: Benchmarks and Leading 

Practices, produced jointly with the Corporate 

Lawyers Association of New Zealand (CLANZ). 

The report is an invaluable resource for legal 

teams seeking to understand how they 

perform relative to their competitive set or 

considering the ways in which they manage 

the legal function. 

This year, the report offers rich data regarding 

trends over time. It shows that in-house legal 

departments have significantly reduced 

their spending on external legal services 

as organisations strengthen internal skills, 

embrace lower cost alternate providers 

and negotiate harder for a better deal. The 

report also revealed the challenges for those 

holding the mantle of general counsel. The 

most significant pressure cited by 78 per cent 

of in-house teams were workload and 

time pressure. 

The research suggests that the scorecard 

for law firms is mixed. While the majority 

of in-house counsel were satisfied with 

their primary law firm, only 51 per cent 

of organisations said that their main firm 

provided advice at a reasonable price and 

only 60 per cent said quotes were realistic. 

Delivering value and transparency in relation 

to the pricing of external legal services 

remains a key challenge for the providers of 

those services. 

One positive trend emerging is that the 

in-house profession is performing well in 

relation to addressing gender equality issues. 

The report show that 42 per cent of the 

351 organisations surveyed had a female as 

their head of legal function, up from 38 per 

cent in 2012. Significantly outperforming 

its counterparts in private practice and the 

corporate sector. 

On the advocacy front, we are working 

with the Victorian and NSW regulators to 

address issues that arise for in-house counsel 

as a result of the introduction of the Legal 

Professional Uniform Law. In NSW, in particular, 

the LPUL creates some potentially significant 

issues but, at this stage, it is our expectation 

that the transitional arrangements for which 

we have advocated will largely ameliorate the 

impacts of those issues. 

Finally, we continue to develop the ACLA 

GC100, which seeks to meet the needs of our 

members who are GCs of Australia’s largest 

companies. As I noted in the last Journal, the 

ACLA GC100 will fill a gap that is currently 

missing in ACLA’s offering by providing a 

forum to address issues relevant to that group 

and an opportunity for members of that 

group to exchange ideas and experiences 

with each other. 

With registrations now open, I look forward 

to seeing you all at the 2015 ACLA National 

Conference, to be held on 11-13 November at 

Sheraton Mirage, Gold Coast! 

ACLA BOARD 

President 

Adrian Goss 

Bauer Media Limited 

Vice President 

Gillian Wong 

St Barbara Limited 

Immediate Past President 

Suzanne Hillier 

National Offshore Petroleum Safety and 

Environmental Management Authority 

Company Secretary 

Rachel Portelli 

Intensive Group Pty Ltd 

Directors 

Jane Bates 

Airservices Australia 

Alicia Burgemeister 

Viterra 

Erica Clark 

IOOF Holdings 

Justin Coss 

InterRisk 

Karen Grumley 

Aurizon 

Andrew Lamb 

Mike Madden 

iseek Communications 

Monika Maedler 

Tassal Group Limited 

Marisa Muchow 

Australian Government Solicitor 

Mei Ramsay 

Medibank Private Limited 

Melvin Yeo 

African Mining Capital Group 

ACLA Membership 

1300 558 550 

PO Box 422 

Collins Street West 

Melbourne VIC 8007 

acla.com.au 

IN THIS ISSUE: 

Maximising Company Valuation Adding 

value to the C-suite 

Cross-border Contracts 

Personal Branding 


5


MEMBER PROFILE SALLY GLOVER: 

Working in a small team for a large global company 

Sally Glover 

Sally Glover is the Chief Legal and Corporate Affairs 

Officer for Yum! Restaurants International (South 

Pacific), which is the franchisor of the KFC and Pizza 

Hut brands in Australia. 

Yum! Restaurants International (Yum!) 

is the franchisor of the KFC and Pizza 

Hut brands in Australia. As part of a 

comparatively small legal team within a much 

larger business, the legal function at Yum! is 

faced with a constant stream of legal queries 

from several departments on a breadth of 

topics. At the head of the legal function is 

Sally Glover, Chief Legal and Corporate Affairs 

Officer for the South Pacific region. 

Sally has a wealth of legal and business 

experience, having previously held senior 

legal positions with US multi-nationals Pfizer 

Pharmaceuticals and Constellation Wines 

Australia (now Accolade Wines), as well as 

directorships with numerous companies 

and not for profit organisations. She has also 

been an advisor to the (now former) Premier 

of South Australia, and a partner in a South 

Australian commercial law firm. 

Attracted to the idea of working within 

a business that allowed professional 

development beyond purely technical legal 

skills, Sally moved in-house from private 

practice in 2003. The move allowed her to gain 

an opportunity to work on a diverse range of 

issues and become truly ingrained in the inner 

workings of a business. 

Since joining Yum! Sally’s role has expanded 

considerably and in addition to heading the 

legal team she is also responsible for corporate 

social responsibility (CSR), government 

relations and issues management. 

Sally’s CSR role involves chairing KFC’s 

executive level CSR Steering Committee. The 

goals set by the Committee act as ongoing 

measures of the business’s success, and drive 

and refine KFC’s progressive CSR strategy. 

For Sally, it has been, and continues to be, a 

rewarding experience to work for a company 

that, among other things, builds sustainable 

business strategies as well as supporting a 

range of programs that assist youth in local 

and international communities. 

‘The KFC business is more than just delivering 

great tasting chicken to its consumers. 

The company is committed to being bestin-class 

in sustainability as well as in its 

people program, which means the work is 

extraordinarily diverse. There is certainly more 

to this chicken business than meets the eye.’ 

Chairing the CSR Steering Committee is just 

one example where by taking on additional 

responsibilities Sally has become more 

involved in different aspects of the business. 

Sally’s success in the business can be 

somewhat attributed to a requirement for 

all executives who join KFC. As she explains: 

‘I was required to work for seven weeks in a 

KFC store to become “certified to manage a 

shift” before commencing work in the head 

office. Working in the restaurant is tough and 

I’m proud of the fact I passed the test and 

received my certification on the first attempt!’ 

During her time at Yum!, Sally has discovered 

the challenges that come with working in a 

small legal team for a large global company. 

Within her team is a lawyer with more than 

35 years of post-qualification experience, 

undertaking a job-share arrangement 

with a lawyer who has around 8 years 

post-qualification experience; a lawyer 

with overseas experience; along with a 

paralegal (who has been with the company 

for 26 years). Sally also has a direct report 

from another department and is currently 

mentoring a lawyer in another country. 

Sally believes there will always be pressure on 

in-house teams to do more with less and it is 

likely that the work that in-house legal teams 

will participate in, particularly for KFC Australia, 

will become more diverse as business needs 

and external perceptions evolve. 

Achieving the best outcomes for the business 

can often mean that the in-house team is 

required to juggle a large volume of work 

with very limited resources. Being a small 

part of a much larger business, Sally’s team 

are constantly faced with legal queries from 

various departments on a wide range of topics. 

A key component for what Sally believes 

makes the team successful is the ability to 

provide sound legal advice and apply the law 

to a diverse set of issues – while being adaptive 

and aware of the commercial objectives of the 

business. On this Sally says: ‘We must be both 

adaptive, whilst cognisant of the real business 

impact of the advice we provide.’ 

Sally is proud of her fantastic combined KFC 

and Pizza Hut all female legal team. ‘All lawyers 

in the team have worked in private practice 

and at other companies in different industries, 

and as such, bring a range of knowledge and 

experience to the table.’ 

As Sally states, working for a global company 

requires thinking in a global mindset. ‘In our 

business it is imperative to recognise that a 

decision made locally in a franchised system 

may set a precedent globally. Similarly, the 

Australian business always has to have one 

eye on the issues affecting other markets since 

these could have local impact.’ 

Working for a global company also gives rise 

to strategic challenges. ‘On a practical level, 

working across multiple time zones requires 

careful management of time and methods of 

receiving information, not to mention some 

late nights and early morning calls.’ 

But with each challenge comes opportunity 

– recently Sally was asked to lead an 

international data security project. 

Sally believes heads of legal functions 

should have a solid understanding of the 

whole business, great communication and 

influencing skills, sound ethics and judgment 

and a service-driven mentality. Furthermore, 

the in-house legal team must have the ability 

to prioritise issues. 

Sally explains ‘This helps their internal clients 

understand what is most important, but also 

if time is limited, allows focus to be on the 

items that will have the biggest impact on 

the business.’ 

At the heart of everything, Sally believes 

that key to being an effective in-house 

awyer is having a genuine understanding of 

the business. 

‘In-house lawyers should also have the ability 

to interact well with a range of internal 

clients and external parties, have excellent 

communication skills, strong commercial legal 

skills, an ability to think strategically and an 

enthusiasm for the cut and thrust of business. 

Being receptive to change and flexibility is also 

important,’ Sally concluded. 


acla.com.au 

THE VALUE OF ACTING WITH COURAGE 

Corporate lawyers bring value through 

their ability to identify and avoid risk. 

Sometimes the risk may be due to 

hasty or self-interested decision-making at 

executive or board level, which creates risk 

for the in-house lawyer themselves. They 

risk being ostracised and excluded, or even 

pushed out of the company, by pointing out 

risks those in power want to ignore. 

The fear of being victimised, dismissed or 

overlooked for promotion can bring about 

self-doubt and undermine confidence in 

the face of having to give unpopular legal 

advice. Yet, if you do not stand your ground 

or if you dilute your advice, you could put the 

organisation at risk, and it will be you who 

is held accountable if later problems occur. 

Therefore, it is imperative in the role of legal 

counsel to cultivate a courageous mindset 

and act with confidence. 

It not only takes courage to act against the 

majority to avoid risk, but it takes just as much 

courage to take a risk. Those in the business 

of avoiding risk can be seen to be difficult 

or ‘human speed humps’ by others. Today’s 

corporate lawyer needs a healthy degree of 

self-confidence, fueled with wisdom to act 

with courage not only in avoiding, but in 

taking risks, for the good of themselves and 

the organisation. 

Why be courageous? 

According to Peter Voyer 1 , courage is one of 

the four pillars essential to strong leadership, 

along with loyalty, knowledge and integrity. 

Voyer points out that courage is the linchpin 

of the four pillars. It takes courage to show 

loyalty in the face of hard times, to act on our 

knowledge and consistently 

demonstrate integrity. 

The greatest breakthroughs in life and 

business require some courageous action; 

whether it is having the courage to admit 

to an oversight, the courage to suggest a 

new approach, the courage to disagree, the 

courage to end something, start something 

or change something, or the courage to hold 

someone accountable for poor decisions 

or behaviours. 

Acting courageously will gain you a reputation 

of reliability, integrity and trustworthiness. 

Those who are known for speaking up at the 

appropriate time are seen to have greater 

value to strategic planning than those who 

stay silent and simply nod their heads. What 

is the point of having group brainstorming if 

all are in agreement with the leader? No good 

leader wants to be surrounded by ‘yes-men’ 

and ‘yes –women’; they need to know they 

can count on their advisory teams to have 

their back at all times. 

Finally, there is great value in cultivating 

courage at the personal level. Research 

indicates that acting with courage on a 

regular basis strengthens our sense of selfesteem 

and ‘locus of control’. This leads to 

greater confidence and by repeatedly acting 

with courage over time, courage becomes a 

habitual and effortless part of our character. 

People who have cultivated the ability to act 

courageously experience less anxiety, are 

better equipped to deal with change and 

empower those around them to think more 

critically and innovatively. 

Become friends with fear 

The dominant reason we tend not to act 

with courage is fear. It may be fear of 

rejection, fear of loss of security, fear of loss 

of reputation or future opportunities, fear 

of upsetting someone or not being liked 

anymore, or maybe even fear of being taken 

seriously and having to then back up our 

argument with action. 

Fear is an emotion that serves as an internal 

warning signal. Our automatic physiopsychological 

response is to feel extreme 

uneasiness and our sympathetic nervous 

system (fight/flight) is activated. In this state 

our thinking races and we are more likely to 

react from instinct rather than reason. 

In some cases fear does not have such 

instant and clear symptoms; rather, there are 

chronic indicators such as excessive worry, 

generalised anxiety and random panic attacks. 

Chronic fear can be mentally, socially and 

emotionally debilitating as well as producing 

health problems, such as head/neck aches, 

digestive problems and general fatigue. In 

extreme cases, sustained stress due to fear 

can eventually lead to illnesses such as heart 

disease, stroke and diabetes. 2 

You gain strength, courage and confidence 

by every experience in which you stop and 

look fear in the face. You are able to say to 

yourself, “I lived through this horror. I can 

take the next thing that comes along.” You 

must do the thing you think you cannot do. 

Eleanor Roosevelt 

Dr Karina Butera 

Dr Karina Butera is a leading authority on 

understanding psycho-social dynamics in 

personal and organisational behaviour. Dr 

Butera is a cultural change specialist who 

has worked extensively in state and local 

government, healthcare and industry. 


7


We put a lot of energy into our fear response. 

Worry is nothing more than the presence of 

imagined fearful situations. Most people 

will experience sleeplessness, nervousness 

and lack of productivity when worrying 

about something they have fears about. Yet, 

in most cases, after the event has been 

tackled, the outcome is not nearly as bad as 

we had imagined. 

Think for a moment of the last time you felt a 

high level of fear over an action you knew you 

needed to take. What were all the scenarios 

that played out in your mind before you took 

that courageous action? What percentage 

of those scenarios were positive and what 

percentage were negative, or even dire? It 

can be quite laughable when we look back at 

all the stories we told ourselves in the lead up 

to a daring moment of action. Yet, seldom 

do the devastating outcomes we worried 

about manifest. Inevitably it is the horrific 

outcomes that gain the most attention in 

our minds, rather than the more logical and 

positive outcomes, when in reality it should 

be the reverse. 

There is wisdom in the saying: that which 

you focus on becomes your reality. When 

we worry, fret and constantly focus on the 

enormity of the challenges ahead, we block 

ourselves from exploring all the options 

openly. We get bogged down and burdened, 

which depletes our energy levels, deletes our 

optimism and quashes our confidence. This 

then is experienced by others as negativity, 

resistance, uncertainty, nervousness and lack 

of confidence, which means our argument 

is not likely to be taken as one delivered 

with conviction and objectivity. So the more 

you obsess about the potential negative 

consequences of acting with courage, 

the more likely you are to create those 

negative consequences. 

Next time you need to muster courage, look 

openly at the related fear. Write it down or 

speak about it out loud to someone. Once it is 

out of your head, it will be much easier to look 

at it objectively and assess what the reality of 

the outcome is likely to be. 

To act courageously does not mean the 

absence of fear, it simply means ‘acting in the 

presence of fear’ or as Susan Jeffers 3 puts it: 

‘feeling the fear and doing it anyway’. 

Rather than seeing fear as something to run 

from, a courageous person will see fear as an 

ally. It provides a warning, stimulates thinking, 

and offers a challenge or opportunity that can 

lead to something greater. Feeling the fear 

can simply be a warning to explore the matter 

further, signaling a need for different or more 

creative solutions. It is there to help us, not 

hinder us. 

Four Steps to taking 

Courageous Action 

One: Be certain 

Lack of certainty can stall us from acting 

with courage. When there is something you 

believe you should do, but you are unsure 

of the outcome, the fear of being wrong 

may hold you back. At times like this, doing 

further research or speaking with a trusted 

advisor, mentor or wise friend can help you to 

gain clarity. However, expecting to feel 100% 

certain will stop you from having the courage 

to take a calculated risk and lead 

to procrastination. Ask yourself the 

following questions: 

• Have I fully researched the matter? 

• Have I looked at all sides of the issue? 

• Am I putting too much weight into one 

party’s interests? 

• Am I 95% sure that this is the right thing to 

do? If not, what do I need to know to be 

95% sure? 

• What am I really risking in this situation? 

What is the true likelihood of a 

negative outcome? 

Two: Make a decision 

Once you have gained at least 95% certainty 

about what you need to do, make your 

decision to do it and commit to acting on it 

within a specific time frame. Share this with 

someone you trust to keep yourself true to 

your decision. 

Three: Develop a plan 

Too often we make a decision and act on 

it in a reactive way. Be disciplined enough 

to develop a strong plan to ensure your act 

of courage goes as smoothly and wisely as 

possible. You might include the following in 

your plan: 

• What is the goal and ideal outcome of this 

act of courage? 

• What are the risks involved, and how will I 

counter these? 

• Who needs to be involved? 

• What is the worst case scenario, and how 

will I handle this? 

• What is my contingency/recovery plan? 

• When will I do it? 

• How will I do it? 

• What supporting documentation 

will I need? 

• What steps will I take to prepare myself 

mentally and emotionally? 

Four: Implement your plan 

This final step seems the most simple one, but 

in fact it is the hardest. You will still have to 

manage your fear, and only you can actually 

take that step into the act of courage. 

Calm your fears by: 

• Reminding yourself of how things could 

turn out if you don’t act courageously. 

• Visualising the positive outcome. 

• Reminding yourself of all the times in the 


acla.com.au 

past you have been through challenges that 

took courage, and draw strength from this 

knowledge about yourself. 

• Being prepared for a negative outcome – 

ready to accept it with grace, knowing you 

have acted in alignment with your own and 

company values and sense of what is right. 

• Getting your body as calm as possible 

prior to taking action. Take five long, deep 

breaths, with each breath tell yourself ‘I 

can do this’ or ‘It will all be okay’. Enter the 

conversation with your posture upright, 

shoulders back and chin up. 

• Know that this moment of courage will 

come to an end and you will feel better 

for it. 

Practice Makes Perfect 

Each and every time you act with courage, you 

will become more proficient and confident. 

You will realise that it’s not that hard after all; 

in fact, the sense of relief and inner triumph 

The only way to discover the limits of the 

possible is to go beyond them. 

Arthur C Clarke 

that you feel after acting with courage can be 

truly exhilarating and energising. It is in your 

own and your company’s best interest for you 

to cultivate courage as part of your emotional 

intelligence tool kit at work. 

So put it to the test. What have you been 

putting off through worry and fear? Commit 

to acting courageously on that particular 

matter. Each time you are faced with an 

opportunity to show courage, work through 

the four steps. Remember you are paid 

to keep the company safe and profitable, 

and that will make your input sometimes 

unpopular – but are you seeking popularity or 

a strong reputation of reliability and integrity? 

Trust yourself to make it through whatever 

life throws you – you’ve got yourself this 

far, you’ve proven you have it in you to be 

courageous. Own it! 

Footnotes 

1 Voyer, Peter A., 2011, “Courage in Leadership: From the 

Battlefield to the Boardroom” Ivey Business Journal, 

November/December, 2011. 

2 Rimer, Sara, 2011, “The biology of emotion – and what 

it may teach us about helping people to live longer”, 

Happiness and Health, Winter 2011. 

3 Jeffers, Susan, 1987, Feel the Fear And Do It Anyway, 

Fawcett Columbine. 

IN-HOUSE INSIGHTS 

The 2015 Benchmarks and Leading Practices Report - Out Now! 

The only Report of its kind in Australia, the 

2015 Benchmarks and Leading Practices 

Report is now available for purchase. 

No matter the shape or size of your organisation 

or legal function - a sole in-house counsel or large 

legal team - this Report contains essential material 

for everyone. 

With benchmarking data, tips and insights the 

Report aims to assist any in-house legal function 

demonstrate and achieve value. 

The 2015 Report is bigger than any previous study 

and has been produced by in-house counsel, for 

in-house counsel. 

Go to acla.com.au to purchase a copy of the report. 

PRODUCT 

Online Version 

Additional Online 

copies (maximum 

of 5) 

Hard copy - available 

to ACLA Full 

Members only 

AMOUNT (Inc.GST) 

$695* ACLA Full Members 

$995 Non-ACLA Members (currently 

working in-house) 

$1395 Others (Associate, student members/ 

law firms) 

$195 per copy 

$790*(Inc. postage) 

* To qualify for this rate you must be a financial Full Member of ACLA. 

PHONE 1300 558 550 

WEB acla.com.au 

Australian Corporate Lawyers Association ABN 97 003 186 767 


9



acla.com.au 

MY EXPERIENCE: NEW TO IN-HOUSE 

Having started as a paralegal with 

DLA Phillips Fox, moved to Thomson 

Geer Lawyers and essentially worked 

within the same legal team for nearly 8 years, 

moving in-house was not an easy decision. 

Ultimately, the opportunity to build my 

own team and have influence within an 

ever growing sector, combined with the 

Government’s commitment to work/life 

balance, was too attractive to turn down. 

My role within Metro South Health 

From 1 July 2012, Queensland Health 

effectively split the managerial and the public 

facing functions within the Department 

of Health. Sixteen new statutory bodies 

(Hospital and Health Services (HHS)) were 

created across Queensland, each aligning to 

geographical areas. For each HHS, a Board 

and Executive structure were set up, and 

decision making was largely returned to that 

geographical area in which health services 

were to be provided. 

With these new HHSs, other functions 

traditionally performed by the Department 

in Brisbane itself were now to be performed 

by each HHS, including activities such as 

procurement. Metro South Health, servicing 1 

million people, employing over 10,000 staff 

and having an operating budget of $1.6 

billion, decided to build a procurement 

team for initiatives that were Metro South 

Health specific. 

My role within the Procurement and Supply 

Team at Metro South Health was completely 

new. Prior to my arrival in August 2014, legal 

advice was obtained externally. However, 

with strategic direction to drive savings in 

procurement activities, Metro South Health 

chose to create a new permanent legal role. 

Expectations versus reality 

There are inherent limitations when moving 

from a dedicated private firm providing 

legal services to a lean business unit 

within government. I knew to expect less 

administrative support, and to not have the 

budget to be able to attend conferences 

and external training. I also had it on good 

authority that the internal approval processes 

would sometimes require skilled and patient 

navigation, to address the clinical versus 

financial interests at stake. 

What I had not anticipated, or at least not 

to the extent I would experience, was the 

deference given to my role. The written and 

oral communication skills that are taken for 

granted within a law firm are highly valued, 

and there was a great deal of eagerness to 

have my input. 

I had also assumed that my scope of work 

would be confined to procurement contracts, 

and that this limited scope would generally 

be understood and accepted. On the 

contrary, I have found that people within 

the organisation will, with the very best 

of intentions, ask for legal advice on every 

possible issue: from leases, to construction 

projects, to employment contracts, to 

government competitive neutrality, and the 

finer points of conflicts of interest. 

Visibility and accessibility have therefore 

been a double edged sword. While it is 

encouraging that my advice is sought and 

valued on any number of issues, it also 

has meant I need to push back against 

demands that would force me to neglect the 

projects I need to prioritise. Ultimately, I am 

accountable for delivering procurement and 

commercial legal advice, even if that means 

that I have to politely but firmly decline to 

assist on non-procurement issues. 

In-house versus private practice 

For me, the major advantage for moving inhouse 

is being embedded within a business 

unit that allows direct and continual contact 

with my internal clients. Those internal clients 

are other business units, Executive or the 

Board, depending on the matter at hand. This 

allows me to understand the business better, 

at both a day-to-day level and at a higher 

strategic level. 

In private practice, the exposure to a client 

and their business tends to be limited to 

the issues for a specific contract or dispute. 

Understandably, limiting the scope of the 

engagement for an external legal firm is 

necessary to manage costs. However, it also 

necessarily means that certain parts of the 

business are not visible, even if they should 

be or need to be. Being in-house allows me 

to participate in many more projects than 

external legal firms would ever be involved. 

Even if I cannot be the sole purveyor of legal 

advice due to lack of capacity or specialisation, 

at the very least I have the chance to flag 

something as a concern that warrants further 

investigation or advice. 

One other major benefit of being in-house 

is being able to shape the very framework 

upon which Metro South Health conducts 

Dana Prasek 

Dana has broad experience in commercial 

and litigious roles, having worked in the 

Corporate / IPT teams at DLA Phillips Fox 

and Thomson Geer from 2007 to 2014. In that 

time, Dana was involved in long running 

trade practices litigation, intellectual property 

transactions, and was on an extended 

secondment with an ICT client. 


11


itself commercially. I have direct input and 

leadership for new policies, procedures 

and processes, including driving contract 

management, procurement activities and 

education. It has allowed me to develop 

and hone my presentation and facilitation 

skills, and to facilitate cultural change across 

the organisation. 

Tips for success: what I would tell 

a new in-house lawyer 

Each organisation is different, and each inhouse 

lawyer’s role will naturally be defined 

according to the needs of the organisation. 

For me, the key messages below are good to 

keep in mind for a lawyer moving away from 

private practice. 

Legal tips and tricks 

• Be flexible: priorities change from week-toweek, 

day-to-day, hour-to-hour. However, 

try not to let the reactive or urgent work 

constantly push back on the less urgent but 

still important foundation work. 

• Be on alert: you will come across issues 

that may not be flagged for your particular 

attention, but you will need to address 

them, or know enough to identify that there 

is something that has to be addressed. 

• Maintain your independence but be realistic 

when dealing with internal clients and risk/ 

commercial decisions. You may need to 

be commercially minded but refrain from 

actually making those decisions yourself. 

• Find people who you can bounce ideas 

off, and who can give you necessary 

direction. These might be lawyers in your 

organisation, or in similar organisations. 

• Even if your organisation lacks a training 

budget, there are many resources available 

to you to ensure you remain updated. You 

can find a great deal of support through 

legal updates, CLE days and other events. 

• If you can, help with internal education 

and training about your role and the issues 

that commonly arise. Do not assume that 

the rest of the organisation will understand 

it or know about it (for example, legal 

professional privilege). 

Suggestions to assist on the non-legal side 

• Early stakeholder and Executive buy-in is 

crucial. While it may take extra time and 

planning, it is a valuable investment in the 

success of a particular project. 

• Understand the politics and the players. This 

is something that can only be developed 

over time, but you will learn about 

underlying conflicts and tensions. 

• Know how to get things through: even if 

it is not a formal process, some decision 

makers may only wish to make the decision 

if they know that certain stakeholders have 

already signed off. 

• Time management is crucial: while the 

billable unit may not apply, there will 

always be more to do than what you 

can accomplish. Learn to prioritise what 

is of paramount urgency and accept to 

postpone what must wait. 

• Be able to adapt to using simpler 

technology and tools. If your organisation 

lacks a dedicated document management 

system or electronic matter management 

software, then use what you have (excel 

spreadsheet etc). 

• Records, records, records: try and be as 

electronic as possible, as printing and filing 

all documents as hardcopies is only feasible 

if you have sufficient administrative support. 

You can still devise a system that will allow 

others to find records if you are on leave, or 

in the future if you have moved on. 

• Develop KPIs: demonstrate your value 

by tracking metrics that are meaningful 

for your organisation. This might involve 

external legal spend, or avoided external 

legal spend. 

In-house legal is a significant cultural shift 

compared with private practice, particularly 

when working in government. For me, it has 

meant developing an expanding skillset, 

a more direct and often more rewarding 

relationship with clients, and a great deal of 

autonomy. I am grateful for the experience 

afforded to me while in private practice, which 

allowed me to develop skills in a number of 

areas, including being involved in several ‘once 

in a career’ matters. Without that exposure, I 

have no doubt that the transition to in-house 

would have been overwhelming. Instead, 

having nearly seven years post admission 

experience in a great team in the private 

sector proved to be an ideal juncture for the 

move in-house. 


acla.com.au 

2015 IN-HOUSE COUNSEL REPORT: 

An indispensable resource for in-house lawyers 

The 2015 In-house Counsel Report: 

Benchmarks & Leading Practices is the 

most comprehensive study of the 

in-house legal profession in Australia and New 

Zealand since the previous edition released 

in 2012. 

351 organisations, representing a full 

cross-section of the in-house legal profession, 

from sole in-house practitioners to large legal 

teams, participated in the 2015 report making 

it the most statistically representative study of 

the profession in the region. 

Put simply, this report is the leading resource 

for organisations in Australia and New Zealand 

to benchmark their legal function and to 

gain fresh, practical insights on how to forge 

a leading in-house practice. It also contains 

a wealth of information to help in-house 

lawyers understand current issues, trends and 

challenges facing the profession. This article 

draws together a range of themes from the 

study to provide a snapshot of where the 

profession is at in 2015. 

2015 trends and highlights 

The in-house profession is evolving 

The 2015 report paints a picture of a 

profession that is evolving and maturing to 

become more self-reliant and ‘smarter’ in the 

way it manages costs and workloads. Indeed, 

workload and time pressures are rated as the 

most significant pressures faced by in-house 

teams, followed closely by resourcing and 

budget limitations. 

Faced with an environment where in-house 

teams are expected to do ‘more’ with ‘less’, it’s 

unsurprising that many have responded with 

a range of practical measures. These include 

strengthening internal competencies to 

reduce reliance on external firms, embracing 

lower cost alternate providers such as direct 

briefing the bar and using legal process 

outsourcers and negotiating harder with 

service providers to secure better deals. 

A hallmark of a leading practice is the 

ability to take relevant, proactive measures 

to alleviate these pressures and the report 

offers detailed insights on many other useful 

strategies including how to better align the 

legal function with the business, improve the 

function’s influence, adopt active practice 

management techniques and establishing 

better frameworks to demonstrate the value 

of the legal function. These are important 

elements in the ongoing effort to develop 

the profession and shift perceptions of the 

in-house function from a ‘cost-centre’, to a 

‘trusted advisor’ and ‘value driver’. 

Relationship with external 

law firms needs to be redefined 

The 2015 report indicates that in-house teams 

are increasingly insourcing their legal work 

and reducing their external spend, particularly 

on law firms. The median external spend of 

in-house legal teams fell by 25 percent, from 

$400,000 to $300,000 since the last study in 

2012 and the average external spend fell from 

$2.2 million to $1.8 million over the same 

period. Decreases were recorded across a wide 

range of organisations including the publicly 

listed, government and not-for-profit/NGO/ 

educational sectors. 

Given that in-house teams spend the lion’s 

share of their external budget – 89 per cent – 

on law firms, we are clearly in an environment 

where firms have to work harder to maintain a 

share of shrinking legal budgets. 

Outsourcing nevertheless continues to be 

an efficient workflow management tool. 

However, this is occurring more judiciously 

with in-house teams becoming more 

exacting about what they expect from their 

external lawyers. 

While the majority of in-house counsel 

– 91 per cent – were satisfied with their 

primary law firm, pricing was identified as 

the biggest sticking point. Only 51 per cent 

of organisations said that their main firm 

provided advice at a reasonable price and only 

60 per cent said quotes were realistic. 

When as many as one in ten in-house lawyers 

are unhappy with their main firm, the clear 

message to law firms is they need to renew 

their focus on what their clients want, 

innovate where necessary, and constantly 

validate why they deserve the business. 

Little progress on time billing 

Despite much discussion in recent years 

about the importance of alternative fee 

agreements (AFAs), the 2015 report finds that 

the profession has unfortunately made little 

headway in breaking away from traditional 

time billing. Time-based billing remains the 

most common pricing model even though 

it is highly unpopular, with only 7 per cent 

of in-house counsel agreeing it is the best 

approach. 29 per cent are dissatisfied with it 

while 45 per cent say it is not ideal but have 

no alternatives. 

Moreover, of the two-thirds of organisations 

that have used AFAs incorporating blended 

rates, volume billing, value-based billing, 

fixed pricing or risk-reward billing, 29 per cent 

rated the experience as a failure, up from 21 

per cent in 2015. Only half said their AFAs 

were successful. 

The demand from the in-house profession for 

workable AFAs is very strong. They provide 

certainty in budget management and are more 

focussed on delivering savings, efficiencies 

and agreed outcomes, which are important 

benefits in a cost-constrained climate. 

Proactive law firms that review their business 

models and work with clients to come up 

with mutually beneficial AFAs are likely to 

see a pay-off in terms of stronger client 

relationships, more repeat work and an 

expanded client base. 

Blueprint for success 

The 2015 In-house Counsel Report: Benchmarks 

& Leading Practices captures a wide array of 

up-to-date information on the state of the 

profession. This article encapsulates just a 

small sample of the data and analysis on offer. 

The report goes much further, covering many 

key issues including: 

• Characteristics of leading in-house practice 

• Demographics of in-house teams: reporting 

lines, staffing, work and responsibilities 

• Factors supporting alignment, influence 

and value to the business 

• Financial metrics of the in-house industry 

• Legal practice management initiatives: 

workflow management, cost controls and 

resource allocation practices 

• Innovative practices adopted 

• Managing work internally and externally 

For in-house teams to excel, they need the 

knowledge, tools and insights to understand 

where they are at vis-à-vis the rest of their 

industry, how their peers manage similar 

professional challenges, and the measures 

they can implement to progress and succeed. 

We trust the 2015 report will support your 

endeavours to take your practice to the 

next level. 

To find out more about the 2015 

In-house Counsel Report: Benchmarks 

& Leading Practices, visit the ACLA 

website acla.com.au 


13


ACLA NEWS 

ACT President 

Jane Bates 

News from ACT 

It’s that time of the year again…Canberra 

has hit minus temperatures and the end of 

financial year mania is upon us (complete with 

stakeholder expectations of miracle working to 

formalise last minute spending)! 

The ACT Division has been busy over the 

last few months with fantastic workshops 

on Commercial and Financial Acumen and 

‘Taking Charge of your Career in Changing 

Times’. The latter was the first of our soft skills 

presentations by Joanna Maxwell from Work 

in Colour. The size of the group allowed for 

a very interactive session with participants. 

Particularly memorable was the analogy 

between adapting to change and the 

questionable evolution of ‘Tennessee fainting 

goats’… check out YouTube if you missed it! 

We have an exciting calendar of events 

planned for this quarter. You will have noticed 

that, with the alliance between ACLA and 

ACC, your member benefits have significantly 

increased and even gone global. And what 

better way to celebrate than with a networking 

event for members (also known as ‘free drinks’) 

– stay posted for further details. 

Then we’ll be following up with our regular 

schedule of CPD sessions appealing to both 

our Government and industry members – from 

negotiation skills, to substantive law updates, 

to professional development panel discussions. 

So don’t just wait until March 2016 to complete 

your points, get in early and remember that 

you can use the ACLA CPD tracker to record 

your attendance! 

VIC President 

Mei Ramsay 

News from VIC 

I hope all that attended the VIC ACLA 

Corporate Counsel Day® built on their 

knowledge of personal branding, courageous 

risk management and felt inspired by Dan 

Gregory to help your organisation innovate 

and inspire those around them. 

Victoria’s CLE calendar is at full capacity with 

a mix of upcoming substantive law seminars, 

soft skill seminars, professional development 

workshops and the ever-enjoyable EOFY 

celebration. Look out for the upcoming 

Commercial and Financial Acumen Workshop 

– Part 2, which will be well received by 

in-house lawyers looking for that extra bit of 

financial literacy. 

Highlights to date include the fully booked 

seminar on using the right document and 

email management system for your legal team 

presented by 2014 Corporate Lawyer of the 

Year Debra Tegoni, and the management skills 

workshop. Due to its popularity and positive 

feedback, we hope to run this two day small 

group workshop again. 

The ACLA National Conference has been 

launched and I encourage you to take 

advantage of the early bird discount rate. The 

conference to be held at the Sheraton Mirage, 

Gold Coast will include more networking 

opportunities for delegates and a newly 

designed program. It looks to be the best 

Conference yet! 

I look forward to seeing many of you at our 

EOFY celebration or at one of the many other 

events planned for 2015. 

WA President 

Jenny Kiss 

News from WA 

For those of you who attended the ACLA 

Corporate Counsel Day® at Crown, I hope 

you’ll agree that it was a fabulous day. The 

speakers were excellent and we all enjoyed 

the networking opportunities. The event 

is in its ninth year and continues to grow. It 

was the first time that we scheduled a split 

session for government lawyers and we plan 

to incorporate more split sessions at future 

events to cater for this group who make 

up a third of our local membership base. 

I would like to thank the members of the 

sub-committee who helped put the event 

together along with Tiani Bradilovic from 

ACLA’s national office. 

We have more networking in our calendar 

with the end of financial year cocktail party 

in July which will be held at the Stables Bar. I 

hope you can join us for a winters’ drink and 

some of the excellent food. 

We continue to offer you plenty of relevant 

CPD opportunities throughout the year 

presented by our Corporate Alliance Partners, 

Ashurst, Minter Ellison, Watermark and HWL 

Ebsworth. Many of these are up on the ACLA 

website and available for registration. 

As the incoming President, I would like 

to thank Amanda on behalf of the WA 

Committee for all her hard work, and wish her 

all the best in her new business. 


acla.com.au 

WHAT WILL YOU DO WHEN A SERIOUS 

INCIDENT HITS YOUR BUSINESS? 

Sonya Parsons, Senior Associate, Thomson Geer investigates how to be invaluable when you guide the 

business through difficult times. 

Sonya Parsons 

Sonya Parsons is a Senior Associate in 

Thomson Geer’s Sydney office and is focussed 

on helping her clients resolve their disputes. 

She acts for clients in the financial services and 

insurance industries as well as manufacturers, 

distributors, mining companies, and property 

developers, and has significant experience in 

courts and tribunals in New South Wales, and 

across Australia. 

It’s 7am and you receive a call on your 

mobile phone from a news reporter. 

A former employee of your company 

has released potentially false and certainly 

damaging information about your company 

to the media. The reporter wants to go to 

press with this story which is likely to have 

serious consequences for your company. 

As the in-house legal counsel for your 

company, how are you going to respond? 

Do you have a plan in place to deal with this 

scenario? Will you have the protocols in place 

so you can be a valuable member of the 

response team? 

There are all sorts of events that can have 

serious or even devastating effects for a 

business. Those events might be: 

• Death or personal injury: such as the Pike 

River mine disaster in New Zealand, or the 

KFC customer who contracted salmonella 

after eating a chicken wrap 

• Environmental: the BP Deepwater Horizon 

oil spill, the Pasha Bulker ship grounding or 

the Brisbane CBD flooding 

• Technological: for example a power 

failure at a data centre, or the inability of 

customers to access bank funds 

• Employee-related: as in our fictitious 7am 

phone call – a former employee takes 

claims to the media who want to release 

a story 

• Criminal: a trespass or blockade by 

environmental protestors, or the bribery 

allegations against GlaxoSmithKline in China 

• Public relations: in November 2013 the 

founder of Lululemon apparel made a 

comment that was interpreted as meaning 

that larger women should not wear 

Lululemon pants. In the following two 

months Lululemon stock dropped by 30%. 

• Technological: such as hacking or cyber 

terrorism, which are ever increasing 

in scope. 

Often these events will be a combination 

of the above. When the 2Day FM DJs made 

the prank call to Princess Kate’s hospital 

pretending to be the Queen and the Prince 

of Wales, Southern Cross Austereo had to 

contend with an event resulting in a fatality, 

a public relations disaster and backlash, and 

potentially criminal consequences. 

Why should you bother to plan? 

One of the in-house lawyer’s roles is to 

protect the business from harm wherever 

possible. Many events may be unforeseeable 

but the potential consequences can be 

imagined. You will be one of the first people 

to be called and you will be expected to have 

the answers or at least know what questions 

to ask. This is one time where your skills will 

be invaluable to the business. 

You can document the steps to be taken in 

advance both to make your life easier when 

one of these events occurs, and to show you 

where more work needs to be done 

to prepare. 

How can you plan for the event? 

You should start by carefully considering the 

legislation applicable to your industry. You will 

probably know much of it by heart anyway, 

but if you operate in different jurisdictions, 

check that you know the different nuances in 

the legislation, or you have access to someone 

who can advise you quickly. 

A weaknesses and threats analysis of 

your business is a good place to start for 

your preparation. Don’t forget to include 

management style or personalities: the 

Lululemon founder is a good example of 

this, as he had previous form in making 

controversial comments. Consider where there 

are pressure points in the business between 

financial imperatives and legal requirements. 

For example, sales staff on commission have a 

financial interest in winning sales and may be 

less inclined to consider the public relations 

disaster of action against your company 

by the ACCC under the Competition and 

Consumer Act 2010. 

Be prepared to look at where things have 

gone wrong in the past, and whether 

sufficient changes have been made to avoid a 

similar incident in the future. This will involve 

considering whether your business 

is 100% compliant with all applicable laws 

and regulations. 

You should know which external parties you, 

as legal counsel, will need to call and that you 

can rely on for quick advice – for example 

the relevant experts or external legal counsel. 

You can also hold meetings with internal and 


15


external stakeholders to discuss your current 

incident response plan. 

You will need to understand the contractual 

and employment relationships in your 

company and who has responsibility for what. 

Also, you will need to identify the duty 

holders for example in relation to safety laws. 

You may also wish to create flowcharts for 

possible scenarios. 

Finally, you should have in place a process 

for tracking obligations which change, 

especially in relation to safety and 

environmental obligations. 

Who will be watching? 

Many people and organisations will be 

watching the event unfold and assessing 

how your business reacts to that event. In 

particular, the regulatory bodies that monitor 

your business – this might be ASIC, APRA, 

WorkCover, EPA, ASX, and the ACCC. Potential 

claimants will be looking to see if they can 

claim compensation as will any potential 

plaintiff lawyers. Your insurer will want to 

see that the event is properly handled. 

Shareholders, many or few, will be watching 

the value of their investment. More generally, 

your customers and the general public will 

watch how your business deals with the event 

and what effect this has on your reputation 

and profitability. 

Who needs to be, or can be, notified 

of this serious incident? 

• the coroner in case of death 

• in case of death, serious injury or illness 

caused by use or misuse of consumer 

goods, the event must be reported to the 

Minister who administers Part XI of the 

Competition and Consumer Act 2010 via 

www.productsafety.gov.au within 48 hours 

• recalls - if safety-related issues, notifications 

may need to be made to: 

o Your customers. You should consider the 

use of Twitter and Facebook (depending 

on the generation of your product user) 

o Other suppliers and distributors of 

your product 

o Food Standards Australia and New 

Zealand for food products 

o Therapeutic Goods Administration 

o Department of Infrastructure and 

Transport for motor vehicles 

o Australian Pesticides & Veterinary 

Medicines Authority for 

veterinary products 

o State and territory electrical and gas 

regulators for electrical and gas products 

• police in the case of criminal conduct. You 

may need to prepare a brief for them of the 

salient matters in order to encourage them 

to take action. Note that s316 Crimes Act 

1900 (NSW) makes it an offence punishable 

by imprisonment for 2 years for failing to 

bring information which may be material in 

securing the apprehension of an offender 

of a serious indictable offence to the 

attention of a member of the Police Force 

or other appropriate authority without 

reasonable excuse. 

• relevant regulatory bodies (i.e. in case of 

pollution it must be done “immediately” 

see http://www.epa.nsw.gov.au/pollution/ 

notificationprotocol.htm) 

o Environmental Protection Authority, 

Ministry of Health, WorkCover, Local 

council, Fire & Rescue NSW. 

• WorkCover in case of a death, serious 

injury or “dangerous incident” (generally 

uncontrolled detrimental environmental 

incidents or structural collapses) arising out 

of the conduct of the business 

• The ASX. Listing rule 3.1 requires 

“immediate” disclosure of any information 

concerning ASX which a reasonable person 

would expect to have a material effect on 

the price or value of shares and/or other 

securities of ASX. 

• employees. You will need to carefully craft 

statements to employees as they may be 

released to the media. You should consider 

meetings and Q&A sessions with employees 

to reduce the need for speculation. 

• the company’s insurer. The insurer may 

want to be involved or to subrogate the 

defence of the claim to the insurer’s lawyers. 

I have seen clients forget that they had 

appropriate insurance cover, so it is worth 

being on top of all the insurance policies. 

• shareholders 

• media 

24-48 hours after the incident, 

you will want to have: 

• set in place a product recall, if required 

• notified all required regulators 

• access to all necessary records and the 

ability to preserve records. You will need 

to know in advance where they are stored 

and who has them under their control. 

Document retention and destruction 

policies were discussed by the Victorian 

Court of Appeal in British American Tobacco 

Australia Services Ltd v Cowell [2002] 

VSCA 197, and wrongful destruction of 

documents is an offence in Victoria. In New 

South Wales a legal practitioner must not, 

under the Legal Profession Regulation 2005, 

give advice to destroy a document if they 

think that the document will be required for 

legal proceedings. 

• established the relevant privilege issues, 

and have set up and conveyed protocols to 

retain privilege. 


acla.com.au 

• appropriately managed people. In doing 

this, you will need to know what support 

services are available and necessary. You 

should consider the use of counsellors, 

the dissemination of information by 

management or superiors, and the 

involvement of union support people 

if appropriate. You will want to have 

captured an organisational chart on the 

day of the incident. Also, ensure that you 

have notified contractors or suppliers of 

temporary contractors. 

• taken control of any relevant mobile phones 

or email addresses of employees if there is 

any suspicion of employee involvement. 

There are many companies that can assist 

with restoration or recovery of deleted data. 

• created a list of witnesses. 

• started taking witness statements. Note 

that you should consider engaging external 

counsel for this for added protection in 

retaining privilege. 

• notified all relevant insurers. 

• considered the need to obtain investigative 

reports. It will be better if these are 

commissioned by external counsel who 

claim privilege over report for the client 

and instruct that it is for the purposes of 

providing legal advice or for potential 

litigation, and the report is kept confidential. 

Inspector Anthony Nicholson (WorkCover 

Authority of NSW) v Waco Kwikform Ltd [2009] 

NSWIRComm 123 (30 July 2009). 

Pre-interview discussions 

with witnesses 

You will need to inform any witnesses who are 

required to attend interviews by regulators 

not to speculate on the causes of the incident. 

They should not hand over any documents 

if there is only an oral request. If there is a 

written request for a document by police or 

regulators, they should seek legal advice either 

from the company’s lawyers or their own 

lawyer. You should alert them to the privilege 

against self-incrimination. If this is likely to be 

an issue, they should be advised to obtain 

separate legal representation. 

Learnings 

Hindsight may show how the event could 

have been better handled or mitigated. It may 

take a long time to understand the causes 

and sequence of events. You, as the in-house 

lawyer, should manage the process of the 

investigation. Always remember that your 

aim is to try and retain privilege over any 

investigative reports. 

If there are breaches of laws or breaches of 

company policies, you will need to consider 

how these matters need to be reinforced. 

Company policies may need to be amended 

or re-stated to employees. 

You may also need to consider matters such 

as CCTV footage, and whether this is being 

sufficiently captured and stored properly. 

Further, are security arrangements to buildings 

or sites sufficient: how easily can nonauthorised 

personnel obtain access, and do 

unions have unfettered access. 

Finally, consider your data and record 

retention and whether the company policy on 

this is sufficient. It is possible that Freedom of 

Information applications and subpoenas may 

follow under which you will have to disclose 

company records. 

In summary, plan as much as you can: it will 

make you look good and will make your life a 

lot easier if one of these events happens. And 

when the reporter phones at 7am, you will 

know what to say and what to do. 

Want to stand out as an in-house lawyer? 

The LLM (Applied Law) is designed to enhance your on-the-job skills and 

give you the edge you need to take your career to the next level. 

Choose from majors and subjects in 

Commercial Transactions, In-house Practice and more! 

EMAIL US 

alp@collaw.edu.au 

CALL US 

02 9965 7111 

VISIT US 

collaw.edu.au/alp 


17


ACLA NEWS 

SA President 

Alicia Burgemeister 

News from SA 

In recent times, there has been an increased 

focus by in-house lawyers on value add 

propositions. This is both value that can be 

gained from external lawyers and also the 

value which in-house lawyers can bring 

to their business. There have been several 

initiatives undertaken in this area; namely the 

great work undertaken by Maria Polczynski 

and the Adelaide Bendigo Bank legal team, 

which was outlined at the ‘Value Add 

Challenge’ workshop held on 28th of May 

at Wallmans Lawyers. Facilitated by myself 

and our Immediate Past President, Danielle 

Arnfield, at this session attendees were placed 

in small groups and developed ideas on 

value add and workable actions. The aim to 

provide ideas attendees will take back to their 

respective businesses for implementation. 

ACLA will be publishing an article on this 

session in the future and other states will 

conduct similar forums in the future. 

Other events recently held in South Australia 

have been seminars held by HWL Ebsworth, 

providing an update on competition 

law cases and a session considering the 

effectiveness of restraints of trade. A 

breakfast snapshot was also held which 

outlined the role of the Legal Profession 

Conduct Commission and its relevance to 

in-house counsel. This was presented by the 

Commissioner himself, Greg May. 

This year is flying by and it is hard to believe 

that we have already reached the middle of 

the year and end of financial year, but the 

SA Division will be celebrating with mid-year 

drinks at The Apothecary on Thursday 25th of 

June. I hope to see all of our members there. 

TAS President 

Erica Clark 

News from TAS 

Registrations are now open for the 2015 

ACLA National Conference & In-house Lawyer 

Awards, with an insightful program designed 

to enrich learning and dive deeper into issues 

for only legal officer, small and large teams. 

There will be more networking opportunities 

this year and keeping up with technological 

advancements, a new Conference App 

will assist delegates with navigating and 

networking. I encourage you to attend to 

not only grow your network at this year’s 

beachside venue- the Sheraton Mirage, Gold 

Coast - but to learn practical tips for your 

own success in-house and translate learnings 

into action. 

For those who regularly travel to Victoria, a 

full CLE calendar plus brand new professional 

development workshops have been 

scheduled for the year. Visit the ACLA website 

for more information. 

Finally, if you would like to get involved in 

the Tasmania Committee or have any 

suggestions about networking events or 

CLE topics I encourage you to contact 

membership@acla.com.au. 

NSW President 

Justin Coss 

News from NSW 

It has been a busy time of year in NSW leading 

up to 30 June. With the success of our ACLA 

Corporate Counsel Day® behind us and 

Professor Gillian Triggs’ inspiring words about 

in-house counsel being the gatekeepers of 

corporate governance still ringing in our ears, 

we are looking ahead with much anticipation 

to the various events on the calendar for the 

remainder of the year. 

After a 2 year hiatus, ACLA NSW’s Annual Trivia 

Night returned in May with an outstanding 

turnout of over 140 guests at Bar100 in the 

Rocks. We extend our thanks to Trivia Night 

Sponsors Hall & Wilcox for their generous 

support and to all those who fought it out for 

trivia glory on the evening. Congratulations 

to the winning team who claimed the ACLA 

Trivia Trophy and Duncan Ramsay, former 

Group General Counsel for QBE, who showed 

off his legal prowess by taking the prize for 

the best legal knowledge. For the remaining 

teams that went home empty handed, there is 

always next year! 

The next social event on the NSW calendar 

is the EOFY drinks, which promises to be an 

unmissable night with a very special lucky 

door prize in store. 

In the meantime, in-house counsel 

throughout NSW are anxiously awaiting 

the implementation of the Legal Profession 

Uniform Law to come into effect on 1 July. 

As the most significant law reform relating to 

the legal profession in NSW in our lifetime, we 

have undertaken considerable engagement 

with stakeholders to advocate on behalf of 

members and ensure a smooth transition to 

the new regime for in-house counsel. 

Finally, it cannot be said too many times but 

I want to thank the NSW committee for their 

ongoing tireless efforts and enthusiasm. 


acla.com.au 

MAKE IT SO: AN AUSTRALIAN BANK 

BANISHES HOURLY FEES 

In May, the team at Bendigo and Adelaide Bank were named 2015 ACC Value Champions. 

Jennifer J. Salopek explores what it all means, and what ideas and tactics other teams can look to adopt. 

The Waterworks, the name chosen 

for the portfolio of value initiatives 

undertaken by Australia’s Bendigo 

and Adelaide Bank, connotes the position of 

the in-house legal department at the time. 

Graphics developed for internal presentations 

illustrate it poignantly: A tiny lawyer stands 

astride a faucet representing a deluge of work. 

The creative approaches comprised in the 

Waterworks, under the leadership of Maria 

Polczynski, Head of Group Legal, have ensured 

that her team members manage the workflow 

and channel the legal focus to the most valueadding 

work. 

Bendigo and Adelaide Bank is a true 

community bank. Its retail arm, Bendigo 

Bank, partners with local communities to 

establish new branches funded by community 

capital raising activities and owned by the 

community company so formed. The aim is to 

yield a sustainable, ongoing revenue stream 

for community purposes and in fact more 

than $130 million has been returned to local 

communities in the past 18 years. This earns 

the bank enormous support from customers 

and advances its vision to be ‘Australia’s most 

customer-connected bank.’ 

“’Feeding into prosperity, not off it’ is part of 

the bank’s DNA. Part of that is being very costconscious 

with shareholder and customer 

money. No one flies in the front of the plane,” 

Polczynski says. Legal technology is limited to 

Outlook-based systems or those that can be 

adapted from other systems already available 

within the bank. Unable to invest in new 

whiz-bang technology solutions, creativity 

clearly was needed to deal with the deluge 

of legal work, the shrinking legal budget 

and flat headcount in the legal department, 

which numbers 13.4 attorneys and 1.4 FTE 

equivalent administrative staff – not many for 

an institution with more than 600 branches 

Australia wide and a market cap of $5.8 billion. 

Insourcing includes the use of the legal team, 

but also specialised use of other bank staff 

for appropriate paralegal work. For example, 

credit staff who review loan packets on 

acquisitions now simultaneously check basic 

paralegal items against a checklist and identify 

deviations for lawyer review. Polczynski 

educated her team on change management, 

as well as appropriate occasions and ways to 

say ‘no,’ to low value work, as they created selfservice 

tools and conducted internal training 

sessions to empower appropriate staff to take 

a commercial approach to low-risk work. 

The legal department partners with providers 

piloting new methods including softwarebased 

legal delivery, such as a pay-per-use 

trade promotion tool that guides non-lawyers 

planning sweepstakes or giveaways through 

an interactive questionnaire to produce 

competition terms and license applications. 

The ACC Value Champions is 

a unique recognition program 

that identifies, celebrates 

and publicises successful 

law department value 

initiatives and collaborations 

between clients and their 

legal service providers. Each 

year ACC identifies and 

highlights individuals who 

have effectively utilised value 

practices to drive change 

within their departments by 

cutting spending, improving 

predictability and achieving 

better outcomes. 

Led by Mark Miller, Head of Legal Strategy, 

work is also disaggregated and insourced 

creatively, such as having the bank lawyers as 

‘solicitors on the court record’ to avoid doublehandling 

of routine trial correspondence. For 

discovery alone, these efforts resulted in cost 

savings for a single year of $500,000 – or about 

a third lower than traditional firm costs. 

However, it is in the area of value-based 

pricing with outside law firms that Bendigo 

has been most progressive. Polczynski says, 

“The hourly rate is still alive and well (for now), 

and firms see anything but hourly rates as 

alternative – the exception rather than the 

rule.” She notes that while capped fees are 

more common and accepted, most options 

still are time-based. 

After two years of engaging firms only on the 

basis of fixed, value-based pricing, but seeing 

variations and scope creep default back to 

hourly rates, Bendigo took a radical line in 

2014 by writing hourly charges out of the 

terms of engagement for all institutional panel 

work. The bank’s institutional law firms agreed 

that, absent pre-agreed fixed prices, afterevent 

discussions on pricing would start from 

the bank’s honest but subjective assessment 

of the value delivered, without reference to 

hours or rates. The resulting collaboration 

with panel firms has led to better alignment 

between firm and client objectives. Bendigo 

has become a prominent and influential 

champion for change in the Australian legal 

market: Polczynski goes out on the speaking 

circuit to promote the methodology with 

other legal industry participants, with the 

goal of encouraging uptake towards a tipping 

point in the pricing of legal services 

in Australia. 

Fixed pricing has greatly enhanced budget 

predictability. Polczynski has instituted some 

innovative variations including pricing for ‘mini 

matters’ and ‘mini retainers.’ For litigation work, 

introducing a rolling retainer with quarterly 

setting of the prospective monthly fee against 

required deliverables resulted in costs that 

were reduced and smoothed, and rolling 

forecasts that were more accurate. 

Through conversations with local colleagues, 

Polczynski has gathered anecdotal evidence 

indicating that disaggregation with insourcing, 

risk-weighted scoping, and value pricing in 

mergers and acquisitions is delivering savings 

in external spend in the order of 40 to 50 

percent as compared to traditional models 

for similar transactions. Significantly, this 

insourcing has been done with flat internal 

headcount over five years, over which time 

external spend on business-as-usual legal 

work has also been substantially reduced – as 

much as 50 percent. 


19


DIRECTORS’ DUTIES 

Additional safeguards and implications in relation 

to the Corporations Act 

Jeremy Loeliger 

Jeremy Loeliger is a partner at national 

law firm Holding Redlich. He specialises 

in corporate and commercial law with a 

particular focus on the agribusiness, energy 

and resources, transport and sporting 

industries. He advises clients in both the 

private and public sectors in relation to issues 

such as corporate governance, mergers and 

acquisitions, and joint venture operations. 

Nicole Hebblewhite 

Nicole Hebblewhite has recently completed a 

Juris Doctor at the University of Melbourne and 

has joined Holding Redlich in the Corporate 

and Commercial team. Nicole specialises in 

general corporate and commercial advice with 

a special interest in corporate governance. 

The personal liability of directors and 

officers of Australian companies 

(Directors) has been the focus of 

significant analysis recently, and yet anecdotal 

evidence and personal experience suggest 

that often little is done to ensure that 

Directors are safeguarded from liability. 

The Corporations Act 2001 (Cth) (Act) provides 

Directors with a limited degree of protection 

in this respect. Additional safeguards can 

be afforded a Director by way of a Deed of 

Access, Indemnity and Insurance. This article 

considers the extent to which those measures 

may co-exist, or conflict, with the Act. 

The recent decision of the Victorian Supreme 

Court in John Leckenby v Note Printing 

Australia Limited [2014] VSC 538 (Leckenby), 

which at the time of writing is the subject 

of an appeal, has brought that potential 

conflict into sharp perspective. This case 

provides some important lessons for in-house 

counsel when taking steps to safeguard and 

balance the interests of both the company 

and its Directors. 

Access 

The Act provides Directors with a general right 

to inspect the books of a company where the 

Director is, or may be, a party to proceedings 

in relation to their holding an office in that c 

ompany. This right continues while a person 

is a Director of a company, and continues for 

seven years once that person has ceased to 

hold that position. 

A Deed of Access will often extend these 

rights to include a right to access the books 

of a company where there is a reasonable 

prospect that an officer will be required to 

appear before an inquiry or hearing of a 

Government Agency, and to take a copy of 

the books where appropriate, and will likely 

incorporate confidentiality obligations and 

seek to preserve legal professional privilege 

which may attach to the books. 

Insurance and Indemnity 

As a general principle, when one entity 

grants an indemnity in favour of another, 

the indemnifying party undertakes to takes 

responsibility for discharging an expense or 

liability (however it may be defined) of the 

other party. 

Directors may be indemnified by a company 

for liabilities incurred by them in properly 

discharging their duties to that company. In 

most instances, a Deed of Access, Indemnity 

and Insurance will indemnify a Director to 

the ‘maximum extent permitted by law’ for 

all claims arising from acts or omissions of a 

director (except where such act or omission 

was negligent or fraudulent). 

Where a company indemnifies a Director 

or agrees to advance funds to a Director to 

conduct its proceedings, the relevant Deed 

will often provide for the company to acquire 

rights in relation to the conduct of the claim 

such as the right to control the defence of the 

claim. This can be cost efficient for companies 

where there are claims against multiple 

Directors. These rights will, in most instances, 

dovetail with the insurance provisions of such 

a Deed, which will commonly provide that the 

company will procure Directors’ and officers’ 

insurance on the Director’s behalf, and require 

that the Director claim against such insurance 

before seeking to rely on the indemnity given 

by the company. 

The Act contains a number of provisions 

which limit the circumstances in which a 

company may indemnify its Directors. Section 

199A of the Act prohibits a company from 

indemnifying a person against a liability 

incurred as a Director of a company where 

such liability: 

• is owed to the company; or 

• arises from a breach of the Director’s duties 

(whether at common law or under the Act). 

Where such a liability arises, the Act also 

prohibits indemnification in respect of the 

legal costs incurred in respect of that liability. 

Relevantly to the Leckenby decision, s 199A(3) 

of the Act prohibits a company from granting 

an indemnity in respect of a Director’s legal 

costs where these costs are incurred in 

defending criminal proceedings in which the 

person is found guilty. 

The Leckenby decision highlights the need 

for in-house counsel to be aware, and 

to ensure that both Directors and the 

companies they represent are consulted and 

informed, of the extent and the limitations of 

the protections which may be contractually 

afforded to a Director. 

Summary of Facts 

In 2011 Mr Leckenby was charged with 

conspiring to bribe foreign public officials to 


acla.com.au 

secure bank note printing contracts in favour 

of Note Printing Australia Limited (NPAL) 

while he was the Chief Executive Officer of 

that company. 

Leckenby enjoyed the benefit of a D&O 

insurance policy and a Deed of Indemnity 

(Deed) granted in his favour by NPAL. It was 

accepted by the parties that the insurance 

policy was insufficient to cover the costs 

incurred by Leckenby in relation to the 

defence of those criminal proceedings, and 

as such he had claimed an entitlement to be 

indemnified by NPAL in relation to his ongoing 

legal costs, pursuant to the Deed. 

The Deed, consistent with section 199A of the 

Act, provided that it indemnified Leckenby 

“to the fullest extent permitted by law” for all 

legal costs and expenses incurred by him in 

defending an action for a liability incurred as 

an officer of NPAL, but excluding any costs 

incurred in defending proceedings in which a 

guilty verdict is returned. The Deed also made 

provision for any moneys paid to Leckenby 

pursuant to that indemnity to be repaid where 

it was subsequently established that Leckenby 

was not in fact entitled to that indemnity. 

The central issue for the Court to determine 

was whether Leckenby was entitled to be 

indemnified in respect of the ongoing legal 

costs prior to a verdict being handed down as 

to his guilt. 

Unsurprisingly, NPAL asserted that the 

indemnity did not have effect until the 

proceedings had been finalised and a not 

guilty verdict had been returned. 

Court’s Decision 

The Court held that the clear intention of 

the parties was that the indemnity took 

effect immediately and as such included 

indemnification for costs incurred prior to 

verdict, and then went on to consider whether 

the terms of the Deed were inconsistent with 

any provisions of the Act. 

It was noted that while s 199A(3) clearly 

prohibited NPAL granting an indemnity 

against legal costs incurred by Leckenby 

where he was known to be guilty, it was silent 

on the issue of whether moneys could be 

advanced prior to any verdict being delivered. 

Consideration was also given to section 212 

of the Act, which permits a company to give 

a financial benefit to a Director where the 

benefit is the making of, or an agreement 

to make, a payment in respect of legal costs 

incurred in defending an action for a liability 

incurred as an officer, if to do so would be 

reasonable in the circumstances and not 

prohibited by section 199A. Though section 

212 did not have direct application in this 

case, the existence of the provision was 

considered important in assessing the ambit 

of section 199A(3). 

Importantly, the Court found that section 212, 

when read together with s 199A(3), reflected 

the intention of the legislature to allow an 

officer to, in limited circumstances, receive 

payments from the company in advance 

of a final verdict being returned. Justice 

Sifiris noted that together these provisions 

recognise the ‘real, practical and possibly 

substantial burden’ faced by officers in 

defending legal proceedings. 

In reaching this conclusion, His Honour found 

there to be no inconsistency between the Act 

and the Deed. The Act contemplated, 

and allows in limited circumstances, a 

company making payment in the form of a 

loan or advance to an officer prior to verdict. 

In Justice Sifiris’s own words, “the prohibition 

in s 199A(3) does not ‘bite’ prior to the verdict 

of guilty”. 

Take home points 

In-house counsel should ensure that both 

companies and Directors carefully consider 

the extent of any indemnity provided under 

a Deed. In particular relevant issues to 

consider include: 

• When and how an indemnity in a Deed 

is triggered 

• Whether money will be made available to 

an officer prior to any verdict, recognising 

that an officer’s inability to access funds 

during proceedings may prejudice the 

outcome of those proceedings 

• Whether costs will be provided to an officer 

in advance or as a reimbursement 

• Any restrictions that might be placed on 

the indemnity 

• The circumstances in which an officer 

will have repay any moneys paid under 

the Deed. 

These issues should be balanced against 

the need to attract top quality, skilled and 

competent Directors and officers and ensure 

they are comfortable in assuming the many 

legal duties and obligations which accompany 

this role. 


21


PERSONAL BRANDING AND ENGAGING 

YOUR KEY STAKEHOLDERS 

Melanie Wilkinson 

Melanie is the Director and CEO, Fenton 

Communications. Melanie specialises in 

public relations, integrated marketing 

communications, brand and reputation 

management and works in financial and 

professional services, health, scientific research 

and infrastructure. Melanie has been awarded 

more than a dozen PRIA awards for excellence 

and has won a prestigious International 

Association of Business Communicator’s Gold 

Quill Merit Award. 

We are all familiar with the power 

of brands. Think Vegemite. Think 

Dyson. Think Cancer Council. 

You have an immediate emotional response 

to certain products and services – this is the 

heart of their brand. 

Many corporate lawyers work for corporations 

or NGOs who spend significant resources on 

building and protecting their brand, as they 

recognise it as an asset that is critical to their 

success and has significant value. 

People also have emotional responses to 

people. Think: Richard Branson, Princess Mary 

of Denmark and Noel Pearson. 

Personal branding is as important as product 

branding and is a critical part of your capacity 

to develop and enhance your career and your 

influence. If you are uncomfortable with the 

terminology ‘ brand’ as it applies to you and 

your colleagues, then think reputation. You 

have a reputation whether you like it or not. 

The options open to corporate lawyers are 

to manage their own personal asset carefully 

or to allow it to be developed and decided 

for them. 

It is impossible to have ‘no’ personal brand or 

reputation. You have one, whether you like it 

or not. The person about whom nobody has 

anything to say is often badged ‘boring’ or 

‘bland’ which is not a brand association most 

corporate lawyers want applied to them. 

Diligent, strategic, considered, smart and 

persuasive would all be preferable! 

This article covers a three stage process for 

developing and managing your brand: 

1. What do you want your brand to be? 

2. Who do you want to know about you? 

3. How can you build your profile and 

develop the right relationships 

What do you want your brand to be? 

There has long been a saying in the 

advertising sector that the fastest way to 

destroy a bad product is to advertise it well. 

Good advertising means many people will 

try it – bad product means they will be 

dissatisfied, fail to repeat the purchase and tell 

others how dissatisfied they were with it. The 

product will then fail. 

Trying to present yourself as something 

that is far removed from the real you will 

undoubtedly fail. Internet dating sites 

appear to be the epitome of personal brand 

promotion which is often totally removed 

from reality with disappointment the likely 

outcome for all concerned! 

When developing your brand you need to 

build on the real attributes you have or those 

you have the capacity to develop: 

• What are you interested in? 

• What is your natural style? 

• What do you know other people say about 

you that you can build on? 

• How do you need to position yourself 

to achieve your professional and 

personal goals? 

• What is the gap you need to bridge? 

Then think about your goals. Is it, for example: 

• To move to a non-executive career? 

• To enhance your current role? 

• To provide new opportunities for you 

professionally? To enhance your 

personal network? 

• To get involved in a 

community organisation? 

What is it that you want people to understand 

about you in order to achieve those goals? 

Do you therefore want to position yourself as: 

• A specialist area of legal expertise? 

• Having sector or industry experience? 

• A strategic thinker? 

• Having a broad business focus? 

• Owning a strong sense of corporate 

social responsibility? 

• Having the capacity to driving change? 

• Knowledgeable about governance? 

Once you have clarity of your objectives you 

can then start to frame the way you talk and 

write to highlight the attributes you most 

want others to associate with you. 

Who do you want to know about you? 

Just as a business has key stakeholders, and 

stakeholder management is a critical aspect 

of both the strategy and operations of most 

leading organisations, you too have the 

personal equivalent of business stakeholders 

– those people who are important to you 

achieving your goals. 

Your goals will drive your stakeholders. 

If it is becoming a non-executive director then 

it is other NED’s and some search firms. If it 

is to gain new opportunities as a corporate 

lawyer then it may be other corporate 


acla.com.au 

counsel and some specialist search firms. If 

it is to enhance your current role, then your 

stakeholders may be internal executives and/ 

or your Board. 

Once you know your stakeholders, it becomes 

clear how you can start to raise your profile 

with them. 

It makes you ask: where do you need to 

network, what does your stakeholder value 

and how can you be part of adding value? 

How can you build your profile and 

develop the right relationships? 

Once you have identified your stakeholders, 

you can start to consider how best to engage 

with them. 

It may be volunteering for internal 

committees, or offering to be involved in 

an internal project around driving change. 

It may be getting involved with an industry 

association, networking in the community 

sector. There are numerous opportunities 

for you to be associated with people, 

organisations and activities which help build 

your brand. 

The most significant new tool for delivering 

engagement and profile raising is 

social media. It offers new and multiple 

opportunities for conversations and 

interactions, for extending your networks, 

building your profile and managing 

your brand. 

It is challenging to many lawyers as it 

is collaborative, thrives on unscripted 

conversation and co-creation and is not 

‘controllable.’ It is, however, possible to control 

your own content to ensure that you are 

managing your brand and avoiding risk. 

LinkedIn is becoming a central tool in a 

lawyer’s communications armoury. It has 

groups with which you can engage around 

every topic or professional interest you 

can name. 

It allows you to present your professional 

profile which will be seen by a 

significant number of your known and 

potential stakeholders. 

Managing your LinkedIn profile to make 

sure it clearly positions you in line with your 

goals is an essential starting point in your 

brand building. As a base for joining groups, 

for sharing information, for updating your 

activity, for making comments to assist raising 

your profile appropriately, and for allowing 

people relevant to your goals to find you, it is 

unparalleled in the professional environment. 

Once you have mastered LinkedIn there 

are many other opportunities to expand 

your presence: 

Twitter: There are many organisations and 

some individuals who regularly tweet about 

legal issues or share information by tweeting. 

Twitter has the capacity to keep you top of 

mind and to allow you to create and share 

relevant content without it being overly 

time consuming. 

Blogging: There are increasing numbers of 

legal blogs and opportunities to use blogs 

to build awareness and raise profile. To use 

blogs effectively, they must be interesting, 

engaging and relevant and aligned to your 

brand positioning. 

Facebook: This is a conundrum for many 

professionals as it challenges the relationship 

between the personal and professional profile. 

Our advice is to treat every posting as if it can 

impact your professional life and limit what 

you post and what you are tagged in. 

And there are also new social media platforms 

emerging daily. 

Just as organisations have social media 

strategies and social media policies, you need 

to have your own personal strategy 

and policy: 

• Which tools will help me achieve 

my objectives? 

• How will I manage my public/personal/ 

professional profile? 

• Will I develop my own unique content? 

• Will I share relevant content developed 

by others? 

• Have I got strict security protocols on 

all profiles? 

The answers to the many questions in this 

article are personal answers and will be 

different depending on your individual 

style, goals and stakeholders. That is the 

whole purpose of branding – to position 

you as something unique. But there are 

significant opportunities to drive success 

through taking stock of your brand and 

managing it in a way that achieves your 

objectives. The power of good branding 

should not be underestimated. 


23


WHAT THE QUALITY OF RESPONSES 

SAYS ABOUT YOUR RFT 

Liana Westcott 

Liana is a Canberra-based specialist 

in Commonwealth procurement and 

contracting. She is passionate about making 

public sector purchasing leaner, smarter and 

more transparent. 

Receiving poor quality tenders may be a 

sign that your procurement documents 

aren’t doing their job. 

Many organisations make the mistake of 

assuming that their standard request for 

tender (RFT) documentation is clear and easy 

to use. They are then genuinely baffled when 

tenders come in that are missing key pieces 

of information or fail to properly address the 

selection criteria. 

The truth is that anything can become 

clear once you have worked with it for long 

enough. But for tenderers who may not have 

seen your documentation before, or who 

may not be experienced in tendering for your 

work, the size and complexity of your RFT 

may make it impossible for them to navigate 

it successfully. This leads to incomplete or 

unsuitable tenders. 

Worse, complex and voluminous documents 

can also act as a deterrent to new players 

participating in the process if they feel 

unequal to the task of decoding the RFT. 

Either way, the result is a lose-lose situation: 

small companies miss out on the opportunity 

to grow their business with prestigious 

contracts, and large organisations miss out on 

the fresh ideas and competition brought by 

new providers. 

Identifying the problem 

Looking back to the quality of tenders 

received for your recent procurement 

activities can be an eye-opening exercise. 

What were the most common deficiencies 

noted by the evaluation team? Was there any 

clear difference in quality and completeness 

between your regular suppliers and new 

players? If so, it may be time to reconsider the 

suitability of your RFT documentation. 

Common problems with simple fixes 

Mandatory requirements not met 

Ensure mandatory requirements are easy to 

locate, towards the front of the RFT. Ensure 

they are clearly stated, few in number and 

always set out the consequences for not 

meeting a requirement in the same section as 

the requirement itself. 

Attachments missing 

Consider including a single checklist 

listing every document the tenderer needs 

to submit. 

Tenders ‘missed the point’ of what you 

were seeking 

If you are seeking something a little different 

to the ‘standard’ offering in the marketplace, 

you must be abundantly clear about how 

your requirements are different and why this 

difference is important to you. Use an industry 

briefing to emphasise these points 

of difference. 

Pricing basis/assumptions not appropriate 

Tell tenderers the basis on which pricing must 

be provided. Provide enough information 

to ensure tenderers do not have to make 

incorrect assumptions. 

If the market uses standard volumes, 

categories or position titles as the basis for 

pricing, try not to depart from that without 

a very good reason – you will only create 

confusion. Tenderers may also increase their 

prices as a defensive move if your price basis 

seems administratively burdensome or risky. 

Insufficient detail 

Consider using blank tables showing the 

type of information you want. For example, 

when asking tenderers to nominate relevant 

past projects, you may want to know which 

personnel actually worked on that project, the 

value, the date of completion and the precise 

tasks performed. If you don’t specify the level 

of detail you expect, you are unlikely to get it. 

Irrelevant brochures or other material included 

Electronic lodgement goes a long 

waytowardminimising this problem, but it 

can still occur. 

The best way to avoid being inundated with 

generic marketing material is to be clear in 

your RFT that extraneous material, including 

brochures, capability statements and letters 

of recommendation, will not be considered 

and should not be provided. Reinforce the 

message in tenderer debriefs, where you 

have more scope to explain why generic 

marketing material that is not directed at your 

specific requirements is not helpful in the 

evaluation process. 

Ask around 

Your organisational peers – be they 

government agencies, local councils or 

large corporations – have a great untapped 

resource in each other. Make contact with 

your colleagues to share market intelligence 

and ask for copies of their template 

procurement documents. 

If you have a good relationship with an 

external legal, probity or procurement 

adviser, ask for their opinion on your 

documents. They have likely seen a broad 

spectrum of approaches to constructing an 

RFT and may be able to recommend some 

simple improvements. 

Next time you are providing tenderer debriefs, 

specifically ask tenderers for their feedback on 

your documents and the conduct of the tender 

process generally. They will be grateful for the 

opportunity to comment and may offer some 

useful insights. The best project teams seek 

tenderer feedback as standard practice, and 

use it to ensure positive market engagement 

and continuous improvement. 


acla.com.au 

HOW TO NAIL THAT TENDER RESPONSE 

In reaction to every request for tender (RFT) 

document issued by a company or agency, 

multiple organisations begin preparing 

responses with the view to being appointed 

to supply the required goods and/or services. 

Just as company lawyers need to be aware 

of how to most effectively compose tenders, 

they can also play a valuable role within 

corporate teams assigned to respond to RFTs. 

In my experience, there are many pitfalls 

companies can fall into when responding to 

RFT documents. To avoid most of them, it’s 

vital the tendering team pays attention to 

the exact information being asked for and is 

thorough and systematic in its approach. 

Since company lawyers are highly trained in 

these very skills, they are in the ideal position 

to make a key contribution to an effective – 

and hopefully successful – tender response. 

The role of your response 

When putting together an RFT response, 

it helps to broadly understand what the 

tendering entity is looking for; essentially this 

is information to help it understand which 

proposed solutions are lowest risk and best 

value. To make the decision, the tendering 

entity needs to assess: 

• Methodology – Is it proven, repeatable 

and low risk? 

• Experience – Does the tenderer have 

experience in providing the products and/ 

or services specified in the 

tender document? 

• Personnel – Will the right people be 

provided at the right time with the right 

level of qualifications and skills? 

• Customer Service – Will appropriate 

services be provided to facilitate and 

support delivery of the contract? 

• Price – Does the tendered price reflect the 

value in the RFT document? 

It’s therefore critical that each and every 

tender response contains sufficient detail 

and relevant evidence to demonstrate an 

organisation’s credentials in each of the above 

points – aligned to the relevant questions in 

the RFT. 

Despite this, many tenderers consistently fail 

to provide the required level of detail and 

evidence in their tender responses – largely 

due to a failure to understand that an assessor 

can only assess what is before them in a 

document, and an assumption that ‘close 

enough is good enough’. 

After 15 years of witnessing the same mistakes 

over and over again while evaluating, 

negotiating and awarding tenders, I’ve 

compiled a checklist of ten tips to assist 

bid teams improve the effectiveness of 

responding to RFTs. Some of these points may 

seem obvious; but you’d be surprised how 

many companies trip up on the basics. 

1. Read the question carefully 

It is unfortunately not uncommon for 

tenderers to misinterpret – or even incorrectly 

assume – what a question is actually asking. 

To avoid this, I recommend tenderers 

systematically evaluate each question 

as follows: 

• identify the core requirement(s) (highlight) 

• identify each supporting 

requirement (underline) 

• consider the question within the context 

of the specifications 

• consider the question within the context 

of the evaluation criteria to understand the 

broader context and weighting of 

the question. 

2. Respond fully to the question 

This means two things: respond to all 

components of the question, and respond 

thoroughly with evidence. If you skip part of 

the question, or answer it incorrectly, you will 

miss out on the score associated with that 

component. The more relevant detail you 

provide, the higher you will score. 

Demonstrable evidence is also important. 

Unless specifically requested, a pure yes, no, 

or partial statement of compliance is not an 

optimal response. Always demonstrate, using 

examples, how you meet the requirement. 

And if you only partially meet the requirement, 

describe how you will become fully compliant 

and outline your roadmap for achieving this. 

The tendering entity may end up reviewing 

references or interviewing tenderers for 

additional information, but these are nearly 

always conducted after an initial evaluation, 

or even a shortlist process. It’s the content of 

your original RFT response that will get you 

to these stages. 

3. Don’t assume anything 

Never assume the tendering entity has prior 

knowledge of your company’s capabilities 

and projects when responding to a tender, 

even if your company is large and well-known, 

or you have previously done work for the 

organisation in question. 

Deirdre Diamante 

Deirdre Diamante is the founder and principal 

of MIA Consulting Services. Based on 15 years 

of experience in procurement and governance 

roles, Deirdre’s intimate knowledge of 

procurement environments makes her a soughtafter 

advisor by commercial and public sector 

organisations alike. She also serves as Deputy 

Chair for the Victorian Council of the Australian 

Information Industry Association (AIIA). 


25


Firstly, to ensure fairness (and that no 

perceived biases or subjectivity influence 

the outcome), evaluators must limit their 

evaluation to information contained within 

the tender response, plus that gained via 

formal requests for further information during 

the tender process. (And the tendering entity 

is under no obligation to seek clarification, 

even if they perceive a discrepancy between a 

tendered response and known capabilities of 

a company.) 

Secondly, is it worth risking the tender 

outcome on the tendering entity’s limited, 

out-of-date or misinformed understanding of 

your company’s capabilities? 

For these reasons: 

• Address each question as if your capabilities, 

strengths and people are unknown to 

the evaluator. 

• Don’t assume an evaluator will think, due 

to your size, you have the appropriate 

resources for the job – describe how your 

resources are appropriate. 

• Describe your methodologies and 

approaches, rather than assume they are 

known just because they may have been 

used previously by the tendering entity. 

4. Target your referees and references 

Carefully select your referees, reference sites 

and reference projects to ensure they confirm 

your company’s stated capabilities and 

experience at delivering the type of work in 

question. Your references must: 

• demonstrate how stated competencies 

have been delivered during 

previous projects 

• are relevant and relate to the requirements 

of the tender. 

It’s also important to describe your reference 

in full, including its relevance to the tender, as 

you will initially be assessed on the content 

of your RFT response prior to any referees 

being contacted. 

5. Embrace repetition 

(but don’t copy and paste) 

Even if it seems one question is asking the 

same thing as another, this is almost never 

the case. However, multiple questions may 

contain elements that are similar, albeit with 

different emphases. In such cases, repeat any 

relevant information required to answer the 

specific question. 

Consider this an opportunity to again exhibit 

how your company has the skills, experience 

and capacity to meet the tender requirements. 

Become creative in how you respond to 

these questions by constantly reinforcing 

your strengths, while still answering the 

specific question. Consistency, while 

accurately answering a question, scores well 

with an evaluator. 

Do not copy and paste answers from one 

question to another. This is a sure sign to an 

evaluator that you have not read the question, 

don’t understand the question, or don’t 

understand the requirement. 

6. Customer service counts 

Customer service proposals are one of the 

best ways of differentiating your tender 

submission from all the others. In general, after 

an evaluation of the ‘company capability’ and 

‘relevant experience’ sections, the tenderers 

with the right skills to do the job are ranked 

closely together. After all, many companies 

you’re competing with will provide similar 

services with similarly qualified personnel. 

For this reason, it’s important to pay attention 

to those sections that generate variations 

in scores – such as customer service. 

(Others include value-add initiatives, quality 

management, knowledge management and 

innovation.) Despite this, the ‘customer service’ 

question is consistently one of the poorest 

answered in a tender response. 


acla.com.au 

7. Offer value-add initiatives 

Value-add initiatives are a ‘free-kick’ to 

differentiate your proposal from all the others. 

The value-add must be a service or product 

that’s related but additional to the core 

requirements of the tender. It ideally needs to 

be something that only your company can 

provide and that is of value to the tendering 

entity – thereby demonstrating you 

understand the client’s business. And of course 

the price does have to be attractive (or free). 

It’s also important that the value-add is 

genuine and affordable to your organisation. 

You don’t want to default on the value-add 

(despite successful delivery against key 

requirements) and risk reputational damage 

or future business with that client. 

8. Understand the policy 

environment of the tendering entity 

Quite simply, if your prospective client is 

required to comply with certain policies, then 

you as a contractor to that company should 

also comply with those requirements – and 

make this clear in your tender response. 

For example, this could include compliance 

with confidentiality, information security 

and conflict of interest policies. Similarly, 

compliance with specific standards – 

such as quality management, OH&S and 

environmental management – might 

be required. 

Company lawyers can provide advice to the 

bid team on the key policy requirements 

of the tendering entity, and how your 

company does (or intends to) comply with 

them. This demonstration of knowledge of 

policy environment not only delivers a more 

compliant response, but also once again 

differentiates you from your competitors. 

The role for company lawyers 

To summarise, company lawyers can make a very important contribution to putting 

together an RFT response – a contribution that is broader than just reviewing the 

contract requirements. 

• Ensure every question has been read carefully by the bid team and understood 

within the wider context of the RFT document. 

• Ensure full and evidence-based responses are provided for each question. 

• Ensure the responses can be evaluated without presumed or background 

knowledge. 

• Ensure each provided reference is clearly expressed and relevant to the requirements. 

• Ensure phrases, experience, dates and personnel names are consistently used 

throughout the response. 

• Identify customer service measures that could resonate with the tendering entity. 

• Ensure the included value-adds are within the scope of the tender and affordable 

and achievable to you the tenderer. 

• Create a checklist against all the tender requirements and tick off each of these 

requirements before the RFT response is submitted. 

• To project manage the bid team to get the response in on time! 

9. Submit a complete response 

I wouldn’t mention this, except that for 

every single RFT I have assessed, at least one 

response has been incomplete. Make sure you 

include everything – including completed 

pricing schedules and no blank responses 

to key questions. 

10. Get your bid in on time 

Again, for every single RFT that I evaluated, 

at least one was late. During my time in 

government, a late tender was never accepted. 

Responding effectively to tenders is 

not difficult in itself – but it can be time 

consuming, and it does require bid teams 

to methodically and patiently work through 

every question in detail – as well as dot every 

‘i’ and cross every ‘t’. Company lawyers, trained 

to be thorough, analytical and to understand 

the context and meaning of words, can 

definitely make a substantial contribution to 

this process. 


27


ACLA NEWS 

QLD President 

Karen Grumley 

News from QLD 

The first 6 months of 2015 have come and 

gone, but we have managed to fill it with 

plenty of events here in Queensland. 

We held the Qld ACLA Corporate Counsel 

Day® on a wet and windy day in Brisbane 

on 30 April 2015. Despite the weather, the 

event was a resounding success. The theme 

‘The Many Hats of In-house’ provided our 

members with varied and informing sessions 

and many of them left the day with valuable 

tip and tricks to help them manage their 

every expanding roles. I would like to thank 

our major sponsor, the Queensland Bar 

Association for their support and for so many 

of their senior QCs and junior members taking 

the time out of their schedules to ‘hold court’ 

with us throughout the day. 

To close out the end of the financial year, we 

are having functions here in Brisbane and on 

the Gold Coast. We hope that our members 

find continuing value in our social networking 

events. A few drinks with your colleagues is 

always a great way to exchange war stories 

and look to the year ahead. 

We are also very excited that the 1 July 2015 

implementation date for our new global 

alliance with the ACC is upon us. The new 

member services this provides will increase 

the global and tailored resources available to 

in-house counsel in Queensland. Make sure 

you log on to the website and take advantage 

of all that is offered. 

In the next 6 months we will continue to 

provide local CLEs and look forward to the 

ACLA National Conference and In-house 

Lawyer Award on the Gold Coast in November. 

It is indeed ‘the game changer’, and we hope 

you are able to join us in sunny Queensland 

for what will be a fantastic conference. 

If you have any ideas or burning desire for a 

particular issue to be addressed in our CLE 

topics for the remainder of 2015, please email 

us at membership@acla.com.au. We would 

love to hear from you! 


acla.com.au 

AUSTRALIAN ANTI-CORRUPTION 

PROPOSAL 

To mandate disclosure of offshore mining and resources 

payments to governments 

With the broader movement 

towards the global Extractive 

Industries Transparency Initiative 

(EITI), Australia took a step forward toward 

supporting transparency and accountability 

in the extractive industries. Late last year 

the then Greens Leader, Christine Milne 

introduced the Corporations Amendment 

(Publish What You Pay) Bill 2014. The Bill, 

currently before parliament, would require 

all Australian extractive industries to submit 

a financial report detailing payments made 

to Australian and foreign governments. By 

mandating public disclosure of payments 

to government entities, this Bill aims to 

improve transparency and accountability in 

the extractive industry, and to deter corrupt 

practices in extractive companies. 

Background 

This Bill follows the global ‘Publish What You 

Pay’ movement, which calls on governments 

to publish payments made by extractive 

companies to government entities. This 

approach has been introduced in other parts 

of the developed world. The EU obliged 

extractive and logging companies to publish 

their payments on a country and project basis, 

in which the UK has committed to complete 

its transposition and implementation of the 

EU requirements, and Norway has passed 

domestic legislation to activate the EU 

Directive. In 2013, Canada has announced 

that it will implement mandatory reporting 

requirements, and the government has 

released details of the rulings in 2014. The 

United States has adopted a similar Dodd- 

Frank Act Section 1504 in 2012, which obliged 

extractive companies to publish payments 

made to US and foreign governments. 

While the ‘Publish What You Pay’ campaign 

calls for mandatory disclosure of payments, 

the EITI is a voluntary standard focused on 

host government payment and receipt of 

revenues from the extractive sector. There are 

currently 48 countries participating in the EITI, 

and Australia has recently completed a threeyear 

pilot programme. Australia is a significant 

supporter of the EITI, and has encouraged 

other countries such as Myanmar and Papua 

New Guinea to undertake the initiatives. The 

‘Publish What You Pay’ Bill aligns Australia’s 

approach to transparency and accountability 

in the extractive industry. The next step would 

be fully implementing the EITI, which would 

send a strong signal about the Australian 

government’s intention to end corrupt 

practice in the extractive industry. 

Proposed Requirement 

Applicability 

The Bill proposes mandatory reporting 

requirement of payments made by Australianbased 

extractive companies. The Bill requires 

such companies to disclose the payments 

on a country-by-country and project-byproject 

basis. The requirement applies to all 

Australian public companies, large proprietary 

companies, and controlled joint venture 

companies that are engaged in resource 

extraction activity. Resource extraction activity 

includes exploration, prospecting, discovery, 

development, extraction of minerals, oil, 

and natural gas, as well as logging of native 

forest. The concept of government entity 

includes the Australian Federal Government; 

the government of an Australian state or 

territory; the government of a foreign country 

(or part of a foreign country); authority of 

any government referred to earlier; and a 

company owned by a government referred 

to earlier. 

Reporting Content 

The reporting companies must prepare annual 

reports (‘Publish What You Pay Report’), which 

include payments (including a payment in 

kind) made to government entities in respect 

of: (a) production entitlements; (b) taxes 

levied on the income, production or profits 

of a company; (c) royalties; (d) dividends; (e) 

signature, discovery or production bonuses; 

(f ) licence fees, rental fees, entry fees or other 

consideration for licences or concessions; (g) 

infrastructure improvements (e.g. building 

of roads, bridges, dams); (h) social payments 

(e.g. community projects, building of hospitals 

or schools); and (i) security services (e.g. 

government defence and police bodies). Note 

that payment is only reportable if the total 

value of the payment is greater than AUD 

$100,000. To avoid concealment of smaller 

payment (i.e. payments being split to avoid 

the threshold), a series of related payments 

that together meet the threshold is treated as 

a single payment. 

Robert Milbourne 

Robert Milbourne, Partner, K&L Gates, is an 

international corporate transactional attorney 

with more than 15 years’ experience in energy, 

finance and infrastructure, with a strong focus 

on mining and resources. He has worked 

extensively internationally, particularly in Asia 

and South America. Robert is also Adjunct 

Professor at the TC Beirne School of Law at the 

University of Queensland. 


29


Public Disclosure 

A company is required to lodge the report 

to ASIC for each project that the company 

is engaged in, and for each government 

entity that the company makes a reportable 

payment to. The report will be in an open 

and machine-readable format, and will 

be published by ASIC, free of charge, on 

its website within 28 days of receipt. A 

company failing to comply with the reporting 

requirements will constitute a breach of 

the Corporations Act 2001 (Cth), and penalty 

provisions will apply. 

Exemption 

ASIC may relieve a holding company from 

the reporting requirements under certain 

circumstances. These include: (i) severe longterm 

restrictions substantially hinder the 

company in the exercise of its rights over the 

assets or management of the subsidiary; (ii) 

the information necessary to comply with 

the requirement cannot be obtained without 

disproportionate expense or undue delay; or 

(iii) the subsidiary is a subsidiary of the holding 

company only because the holding company 

holds shares in the subsidiary for the sole 

purpose of selling them. 

Implication 

By requiring Australian-based extractive 

companies to disclose payments made 

to government entities, this Bill raises a 

number of important issues, including 

the management of confidentiality with 

foreign governments. The disclosure of 

the information can be confidential (e.g. 

relating to research, technology or strategic 

investment), and may impact on third party 

obligations (e.g. non-Australian resident 

joint venture parties). If companies have 

already entered confidentiality provisions 

in agreements with foreign governments, 

then compulsory disclosure would have 

ramifications on breaching of those 

agreements. Australian companies should 

closely monitor the progress of the Bill, and 

give considerations to the confidentiality 

obligations with government entities. 


acla.com.au 

SEVEN REASONS CYBER RISK 

SHOULD BE ON THE RADAR 

OF CORPORATE COUNSEL 

Reports in the media of new cyber 

attacks resulting in significant leaks 

of corporate or personal data appear 

almost weekly. Cyber risks, such as hacking 

attacks and breaches of data security, are the 

talk of the town for 2015. There is increased 

regulatory pressure on corporate entities, and 

on their boards and management, in relation 

to duties and obligations associated with 

cyber risks and data protection. 

Corporate counsel, as part of their risk 

management function, need to have cyber risks 

firmly on their radar. In this article we seek to 

highlight seven key reasons why that is so. 

Cyber incidents are happening 

now and are costly 

There is no doubt that cyber attacks are 

increasingly widespread and the costs to 

business and the community are significant. 

The 2013 Norton Report 1 revealed that the 

total cost of cybercrime in Australia in 2013 

was estimated at A$1.06 billion, with 5 million 

Australian victims affected. Information 

recently published by the Australian Crime 

Commission indicates that there were up to 

15,000 systems compromised by malicious 

software on average each day between 17 

October 2014 and 14 January 2015. 2 

Companies and government departments 

are often significant targets for cyber attacks, 

and data breach can be hard to detect. Once 

breach is established, damages or losses 

suffered can be hard to quantify. Indeed, 

losses and claims might not be immediately 

apparent. Take the widely publicised breach of 

data security at the Sony Corporation: hackers 

gained access to data that included sensitive 

information of Sony, such as contracts 

relating to the production of movies and 

employee data. The hackers did not alert Sony 

immediately to full details of the data that 

had been accessed. Instead, they effectively 

held Sony to ransom by periodically informing 

Sony piecemeal as to the relevant data they 

had accessed, accompanied with threats as to 

how that data might be disseminated or used. 

Sony is not alone. Target, JP Morgan Chase 

and Apple (to name a few) have been the 

victims of significant and well-publicised 

cyber attacks. 

Companies are not only vulnerable to external 

malicious attacks, but also to internal errors, 

such as inadvertent disclosure on the internet, 

which can result in data being compromised. 

Such incidents can prove to be costly, not only 

from a financial perspective, but also in terms 

of a company’s time, inconvenience and, 

importantly, reputation. 

Companies have certain obligations 

with respect to security of 

personal information 

Many companies hold significant amounts 

of data comprising personal information 

about individuals, and that information is 

often the subject of targeted cyber attacks 

(not to mention inadvertent leaking via 

internal employee errors). The Privacy Act 1988 

(Cth), which includes the Australian Privacy 

Principles (APPs), governs how companies are 

to treat that data. 

Of particular relevance, an entity that holds 

personal information must take reasonable 

steps to protect the information from misuse, 

interference and loss, as well as unauthorised 

access, modification or disclosure (APP 11.1). 

The Privacy Commissioner has, in recent 

months, issued new regulatory guidance 3 

as to what constitutes ‘reasonable steps’ to 

protect information security. Some of the 

steps recommended by the Commissioner 

include measures specifically relating to 

managing cyber risks. In particular, the 

Commissioner notes certain ICT security 

steps to mitigate the risks of internal and 

external attackers and the damage caused by 

malicious software such as malware, computer 

viruses and other harmful programs. The 

Commissioner outlines steps such as securing 

a company’s website/s, social media platforms 

and mobile device applications, along with 

Internet connected end-user mobile devices. 

Also important, from the Commissioner’s 

perspective, is considering the possibilities 

of human error, malfunctions, power and 

systems failures. 

In short, the Privacy Act imposes a legal 

obligation to take steps to appropriately 

protect personal information by managing 

certain cyber risks. 

Andrew Miers 

Andrew Miers is an Insurance Partner at HWL 

Ebsworth. He has specialist expertise in media 

and technology liability and risks, including 

disputes involving defamation, privacy, social 

media and credit reporting and in defending/ 

advising on claims against IT professionals. 

Andrew is especially recognised for his expertise 

in cyber risk and data breach insurance. 

Matthew Hunter 

Matthew Hunter is a Senior Associate at 

HWL Ebsworth with over 15 years’ litigation 

experience. He has acted in commercial disputes 

and complex litigation on behalf of a variety 

of parties including insurers and financial 

institutions. Matthew has also been involved 

with the defence of claims on behalf of media 

and IT professionals. 


31


The Privacy Commissioner 

now has teeth 

On 12 March 2014, extensive amendments 

to the Privacy Act came into force. One of 

the most significant amendments was the 

introduction of new powers given to the 

Privacy Commissioner, a regulator some 

had previously seen as a “toothless tiger”. 

Significantly, these powers include: 

• civil penalties: the Commissioner may 

apply to the courts for a civil penalty 

in the event of a serious or repeated 

interference with the privacy of individuals. 

The maximum penalty for an individual is 

$340,000 and for a corporation is 

$1.7 million. 

• enforceable undertakings: the 

Commissioner can accept an enforceable 

undertaking from an entity as to specific 

action or refraining from taking specific 

action in order to comply with the Privacy 

Act or to ensure that the entity does not 

engage in practice that interferes with 

an individual’s privacy. If the entity does 

not comply with the undertaking, the 

Commissioner can apply to the courts to 

enforce the undertaking. 

The Commissioner thus now has the ability 

to more effectively enforce privacy and data 

protection obligations. 

The Privacy Commissioner 

is using its new powers 

Having powers is one thing, but exercising 

those powers is another. The Commissioner 

has recently demonstrated a willingness to 

use these new powers in obtaining the first 

ever enforceable undertaking under the 

Privacy Act from Singtel Optus (Optus). 

The Optus enforceable undertaking came after 

an investigation initiated by the Commissioner 

on 28 July 2014 into three incidents of data 

breaches by Optus that affected more than 

300,000 customers. Those incidents related 

to errors with Optus’s internal systems and 

processes that led to the data of certain Optus 

customers either being made available to the 

public or vulnerable to being breached. 

The Commissioner took into account the 

large number of customers affected, the 

risk of harm to certain of those customers 

(particularly relating to the contact 

information of silent number customers being 

made publicly available), the apparent lack of 

reasonable security measures to protect the 

information and the failure by Optus to detect 

the incidents which prolonged the duration of 

the related risks to customers. 

The enforceable undertaking entered 

into by Optus required Optus to engage 

an independent auditor, implement any 

recommendations and rectify deficiencies 

identified by the auditor in its reviews and 

certifications and, within approximately 18 

months, provide a report by the auditor to 

the Commission certifying that the specified 

actions have been completed. 

Quite apart from the Optus enforceable 

undertaking, the Commissioner has shown 

a greater willingness in recent years to make 

determinations under the powers it already 

held under the Privacy Act before the recent 

legislative amendments. 

The rubber will really hit the road, however, 

when the OAIC brings its first case seeking a 

civil penalty because nothing speaks louder 

than money! 

Other regulators are flexing 

their muscle in cyberspace 

While cyber related incidents have 

traditionally been thought to be the domain 

of the Privacy Commissioner, other regulators 

have potential regulatory oversight in the 

area as well. For example, APRA released in 

September 2013 a prudential practice guide 

on “Managing Data Risk” 4 which outlines 

steps for APRA-regulated institutions to 

appropriately manage their data risks. 

Perhaps most significantly in recent times is 

the release by ASIC in March 2015 of its Report 

429 ‘Cyber resilience: Health check’ 5 . In that 


acla.com.au 

document, ASIC appears to be of the view 

that “cyber resilience” (i.e. “the ability to prepare 

for, respond to and recover from a cyber attack”) 

is more than just a matter of good practice 

but a matter of compliance with specific legal 

obligations. Thus, ASIC’s report provides not 

only some “health check prompts” to assist 

with a company’s cyber resilience, but also 

an overview of some of the existing legal 

and compliance requirements for companies 

which may positively require steps to be 

taken with respect to cyber risk, including risk 

management and disclosure requirements. 

By way of example, ASIC notes the continuous 

disclosure obligations of listed entities to 

disclose market-sensitive information to 

the market suggesting this might include 

disclosures about a cyber attack. 

ASIC also highlights the responsibility of the 

board of directors and senior management 

in being aware, and having oversight, of 

cyber risks, emphasising the duties placed on 

directors by the Corporations Act. 

ASIC has clearly signalled that it is now 

taking a more active interest in cyber risk 

management and expects those under its 

regulatory scrutiny, particularly licensees, to 

address cyber risks as part of their legal and 

compliance obligations. 

Mandatory data breach 

notification is on the horizon 

After being on the cards for many years, 

including a recommendation by the Australian 

Law Reform Commission in 2008 and regular 

calls by the Privacy Commissioner for reform, it 

appears that Australia may finally be about to 

get its own version of mandatory data breach 

notification laws. Such laws have been in 

existence in most states in the USA for about 

the last decade. 

The former ALP government sought to 

introduce mandatory data breach notification 

with its Privacy Amendment (Privacy Alerts) 

Bill 2013, but that legislation did not make it 

through Parliament before the 2013 Federal 

Election. That Bill, if enacted, would have 

required businesses to give notification to 

the Privacy Commissioner and any affected 

individuals of any data breach giving rise to a 

‘real risk of serious harm’. 

With that legislation shelved, the issue 

came back on the agenda earlier this year 

as part of a trade off for Parliament passing 

data retention laws. On 27 February 2015, 

the Parliamentary Joint Committee on 

Intelligence and Security 6 recommended 

the introduction of a mandatory data breach 

notification scheme by the end of 2015 

as a means to protect personal privacy, 

given mandatory data retention would 

result in a greater amount of data being 

held and exposed to breaches. The Federal 

Government came out a few days later in 

support of the recommendation. 7 

It remains to be seen how similar the 

proposed legislation will be to the previous 

Bill put forward by the last government. But 

whatever final form it takes, the introduction 

of such laws will be a further legal obligation 

with which businesses will need to comply in 

the event of a cyber incident involving a 

data breach. 

Arguably a requirement for 

breach notification already exists 

Even in the absence of mandatory laws, the 

Privacy Commissioner ‘strongly recommends’ 

compliance with its voluntary guide on 

data breach notification. 8 Effectively, the 

guide indicates notification of a breach 

should be given to the Commissioner and 

to affected individuals, where there is a 

real risk of serious harm. The Commissioner 

has also said that breach notification may 

Cyber risk insurance 

be a requirement of the ‘reasonable steps’ 

required to protect information security 

under APP11. Conversely, a failure to give 

notification of a breach might therefore be 

a failure to take ‘reasonable steps’ to protect 

personal information and thus be a breach 

of APP11. Combine that position with the 

Privacy Commissioner’s newly introduced 

powers, and it may be the case that, pending 

the introduction of mandatory data breach 

notification, the Privacy Commissioner 

already has the ability to enforce a form of 

breach notification. 

The world of cyber risks is a constantly 

changing and developing area. Quite apart 

from the technical issues surrounding the 

ever-evolving external threat landscape, 

this is an area where legal regulation is also 

undergoing rapid movement. Legal counsel 

need to continue to keep a very close eye on 

businesses’ legal and compliance obligations 

in this dynamic digital domain. 

One tool for in-house counsel to consider in managing cyber risk is cyber risk insurance. 

This is a relatively new product in the insurance market designed to provide cover, not 

only for third party liabilities that might arise in the event of a cyber incident (such as 

claims by third parties for breach of privacy or breach of confidentiality), but also for 

‘first party losses’ such as business interruption losses, forensic and remedial steps, public 

relations costs and breach notification related costs. 

Far from being a means to passively off load risk, the purchase of a cyber insurance policy 

should in fact go hand in hand with sound risk management. Indeed, most insurers will 

be reluctant to underwrite anything they regard as a bad risk, at least at an affordable 

premium. The very type of questions an insurer is likely to ask in an insurance proposal 

form as to a company’s cyber risk management measures are questions that those with 

an in-house legal or risk function should be asking in any event and thus ought serve to 

promote better practices in this area. 

Indeed, ASIC, in its recent Cyber Resilience report, addresses the question of insurance. 

ASIC notes that “existing insurance (eg business continuity or professional indemnity cover) 

may not adequately cover the impact of a cyber attack” 9 and “considering cyber insurance 

may be an appropriate business decision based on a company’s risk profile 10 ”. 

Footnotes 

1 http://www.symantec.com/en/au/about/news/release/article.jsp?prid=20131015_01 

2 https://www.crimecommission.gov.au/media-centre/release/australian-crime-commission-media-release/malware-poseshighest-cybercrime 

3 Office of the Australian Information Commissioner, “Guide to securing personal information:‘Reasonable steps’ to protect personal 

information”, January 2015 

4 Prudential Practice Guide CPG 235 Managing Data Risk 

5 http://download.asic.gov.au/media/3062900/rep429-published-19-march-2015-1.pdf 

6 In its Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. 

7 See joint press release by the Attorney-General (the Hon George Brandis QC) and the Minister for Communications (the Hon 

Malcolm Turnbull MP) on 3 March 2015. 

8 OAIC, “Data breach notification guide: A guide to handling personal information security breaches”, August 2014. 

9 http://download.asic.gov.au/media/3062900/rep429-published-19-march-2015-1.pdf at para 62 

10 As above, at para 64 


33


MAXIMISING COMPANY VALUATION 

John-Henry Eversgerd 

John-Henry Eversgerd is a business valuation 

specialist and leads McGrathNicol’s national 

valuation offering. He assists clients with 

transactions, strategy, shareholder and corporate 

disputes and litigation, and helping companies 

improve key value drivers. 

David Barnaby 

David Barnaby is a Transactions Partner 

at McGrathNicol specialising in advising 

companies, private equity and financiers in 

maximising value on the buy and sell side of 

mergers and acquisitions. 

Over and above the benefits of 

enhancing investor returns, increasing 

company value fosters resilience and 

positions companies to take advantage of 

new opportunities. 

Following the Global Financial Crisis, Australian 

company valuations have been improving 

strongly. According to data from S&P Capital 

IQ, average forward price to earnings 

multiples for companies in the ASX All 

Ordinaries index have grown approximately 

16% over the last twelve months and 42% 

over the last three years to above 17 times 

the next twelve month forecast earnings. 

Company management and investors are 

taking advantage of this boost in valuations 

as evidenced by continued strength in initial 

public offerings (IPOs) and a recent surge in 

merger and acquisition activity. 

Whether you are directly involved in 

transactions, preparing your company 

to list, or merely interested in a valueenhancing 

business strategy, a commercial 

understanding of the ways many companies 

have boosted their value and increased 

returns to owners and investors can provide a 

competitive advantage. 

Key drivers of Value 

Institutional investors, equity analysts, 

investment banks, and potential acquirers 

assess the value of businesses by considering 

many quantitative and qualitative 

characteristics. These key value drivers can 

be broken down to two simple categories: 

(i) increasing returns; and (ii) reducing risk. 

The following are 8 of the most common 

quantitative and qualitative ways we advise 

management and/or owners to focus on 

to increase returns and reduce risk, thereby 

increasing the value of their companies. 

1. Increase profitability 

Many Australian companies have successfully 

implemented a laser focus on cost reduction 

in the last few years. At risk of stating the 

obvious, the value of a business will clearly 

increase if management can boost revenue, 

reduce costs and bolster growth. All the more 

so if the improvements are sustained over 

two to three years. However we have seen 

cases when there was little time to build a 

long history but management was still able 

to achieve a jump in value as a result of 

shorter term improvements when an acquirer 

believed in the ongoing growth forecast from 

these improvements. 

8 ways to increase 

business value 

1. Increase profitability 

2. Minimise key person risk 

3. Improve cash conversion 

4. Reduce customer and supplier 

concentration 

5. Improve reliability/accuracy of 

historical financial information 

6. Improve rigour of budgets 

and forecasts 

7. Review contractual agreements 

and obligations 

8. Formalise corporate governance 

policies and procedures 

2. Minimise key person risk 

Key person risk is one of the most common 

issues in small and medium sized enterprises 

(SME), closely held companies and some 

listed companies. Key person risk is the risk 

that a key member of staff, for example the 

CEO or top sales person, leaves suddenly 

resulting in a significant negative impact on 

the business. This has been highlighted in a 

number of public companies recently, such 

as Myer and Orica, where the market has 

reacted unfavourably to perceived poor CEO 

succession planning. 

Companies which have successfully 

mitigated this risk through timely and 

effective succession planning have 

increased their value. This takes time and 

requires development of future leaders, 

institutionalising knowledge of key 

people and spreading client and other key 

relationships to other employees. 

Good key person insurance policies may help 

mitigate the cost, but many transactions have 

failed or achieved a much lower price due to 

the acquirer’s fear that the business will incur 

irreparable damage were a particular person 

or team to leave. 

3. Improve conversion 

of profit into cash 

Experienced valuation analysts focus on cash 

flows more than accounting earnings. A 

company that can demonstrate a historical 

ability to quickly convert a higher portion of 


acla.com.au 

earnings into cash is more attractive and will 

achieve higher valuations. 

A recurring issue in many companies 

is a skewed management focus on the 

accounting ‘profit’. This can happen for a 

number of reasons, including the fact that 

often management remuneration is tied to 

accounting profit rather than cash flow. 

The good news is for many companies there 

is low hanging fruit to improve cash flows by 

shifting management’s focus and incentives. 

We are frequently surprised at how many easy 

fixes there are to generate more cash out of 

the same earnings stream through increased 

focus and improved policies and procedures 

that enhance areas such as debtor collections, 

creditor payments and inventory management. 

Taking just a few days out of the working 

capital cycle not only immediately impacts cash 

flow, but has a multiplier effect on business 

valuation. Better cash conversion lifts valuation 

multiples since it can be used to increase 

dividends, reduce bank interest, and make 

funds available for investment. Private equity 

firms have been astutely using this strategy to 

maximise profits on the exit of investments. 

4. Reduce customer 

and supplier concentration 

A common risk that commands much 

attention by those performing company 

valuations is customer and supplier 

concentration. Clearly, a great relationship with 

a few key clients is something to be proud 

of. However valuation analysts often develop 

scenarios in their valuation analysis to consider 

what would happen if a number of customers 

or suppliers disappeared. Companies deal with 

this risk in numerous ways, including investing 

in more sales and marketing to expand their 

client or supplier base or locking in longer 

term contracts with existing relationships. The 

value uplift from reduced risk may be worth 

the investment even if it means conceding a 

bit in price negotiations. 

5. Improve reliability / accuracy 

of historical financial information 

Valuation analysts prefer 3-5 years of historical 

financial statements to form the basis of their 

analysis. Audited financial statements are 

preferred, but even with audited financial 

statements; the quality of the information often 

varies. Quality of financial information is always 

a risk in assessing value; the lower the perceived 

reliability, the greater the risk and the lower 

the value. Potential purchasers may even walk 

away from a deal if the information quality is 

inadequate. Acquirers and vendors of business 

often address this risk by commissioning 

external independent financial due diligence 

to challenge the financial information of a 

company, work out a plan to address any issues 

and ultimately increase its reliability. 

On a recent matter, due to questions over the 

reliability of historical financial information, the 

acquirer of a supplier to the energy industry 

paid half of the purchase price up-front and 

deferred the other half in an earn out subject 

to future financial performance. A year later, 

due in part to reasons out of management’s 

control, it appeared unlikely that the earn-out 

would be paid. The lesson is that the up-front 

payment could have been higher if the vendor 

was able to deliver financial information in 

which the buyer could place more faith. 

6. Improve rigour of 

budgets and forecasts 

The value of a business is ultimately linked 

to what the business will accomplish in the 

future. A company that produces convincing 

budgets defrays the risk inherent in future 

events and will command a higher value than 

one that does not. The historical accuracy 

of budgets and forecasts assists a valuer in 

determining the reliability of budgets and 

forecasts for future periods. Most companies 

prepare budgets and forecasts, the detail of 

which will vary depending on the size and 

complexity of an entity. Whilst this information 

is useful to a valuer and potential purchasers, it 

is only the first step of the process. Companies 

that demonstrate budgets and forecasts have 

been analysed against actual results, at least 

monthly, which are then quickly acted upon, 

are more attractive to potential acquirers. 

Identifying a variance between budgeted and 

actual results is simple arithmetic, identifying 

and understanding the cause of the variance, 

and responding effectively, is much more 

valuable. This illustrates to a potential acquirer 

that management is across the performance 

of the business and that the process followed 

to prepare budgets and forecasts is robust and 

can be relied upon to monitor and predict 

business performance. 

7. Review contractual 

agreements and obligations 

Locked in contracts increase the security of 

revenue and therefore the valuation multiple, 

but they can also decrease the value of a 

company if the contracts themselves are 

not profitable. Customer contracts should 

be reviewed periodically or when changes 

that impact the cost of servicing contracts 

(i.e. freight costs) occur. Other contractual 

obligations regarding leases, loans, franchise 

agreements and distributor agreements can 

also affect the valuation multiple applied 

to the earnings of a company. For example 

lease agreements with onerous exit clauses 

or above market annual reviews are likely to 

reduce value. 

8. Formalise good process and 

systems for corporate governance 

Corporate governance has an underrated 

impact on company valuations. An 

assessment of the process and systems 

for corporate governance underpins any 

assessment of the risk associated with an 

entity. Many closely held companies lack 

formal control processes. Whilst more 

informal processes may be practically fine 

for the day to day business, from an 

external party’s perspective, the lack of 

documented procedures and ongoing 

records increases the level of risk of the 

unknown and reduces value. 

There are many ways to increase the value 

of a business over and above the obvious 

financial metrics of revenue, profit margin 

and growth. Understanding how institutional 

investors, equity analysts, investment banks, 

and potential acquirers assess the value of 

businesses is useful regardless of whether 

there is a transaction on the immediate 

horizon. Consideration of these and other key 

value drivers can help management focus 

their investment of time and money to boost 

the value of their businesses over time and 

position them to exploit opportunities. 


35


GENERAL COUNSEL: ADDING VALUE 

TO THE C-SUITE 

Christiana McCudden 

Christiana is a special counsel in Gilbert + Tobin’s 

Litigation group with many years’ experience 

in large commercial litigation and advice 

work across a range of industries. Christiana 

has worked closely with senior executives and 

general counsel of public and private companies, 

advising them in respect of complex litigation or 

corporate, commercial matters. 

Janet Whiting 

Janet Whiting is head of Gilbert + Tobin’s Litigation 

practice in Melbourne and one of Australia’s preeminent 

commercial litigators, with a reputation 

for providing strategic and commercial advice 

and delivering solutions. Janet also has extensive 

experience as a board director. She is the trusted 

advisor of numerous CEO’s and general counsel. 

Many general counsel, when 

discussing their reasons for wanting 

to work in-house, reference a 

desire to work more closely with business 

and be directly involved in the commercial 

operations of an organisation. It is also 

common, however, for general counsel to 

express concern or frustration that they are 

considered as road-blocks by the business. 

Conversely we hear senior executives state 

they seek greater commerciality from their 

in-house legal advisors. 

Whether operating as a member of the 

executive team directly, or reporting to 

senior executives, there are matters that 

general counsel can consider to ensure they 

are adding real value to the C-suite and 

developing their role as a trusted advisor to 

their senior executives. 

Know the business as an Executive 

It is otiose to observe that general counsel 

need a thorough knowledge of their 

organisation and its operations. Good 

general counsel, however, are testing and 

strengthening their knowledge beyond 

traditional parameters of the contracts, 

legislation, regulators or legal principles or 

rules relevant to their business. 

In learning to scrutinise the business in the 

way a CEO, CFO or COO would, general 

counsel can identify ways to deliver their 

advice and expertise with a business acumen 

sought from the senior executives. For 

example, general counsel will know their 

organisations’ customers, suppliers and 

products. However, do you also understand 

how the company’s margins are generated 

and what are the pressures or tensions on 

such margins? Are you aware of the point of 

difference between your organisation and its 

competitors and how the business is seeking 

to maximise any advantage? 

A commercial perspective of an organisation 

requires an understanding of the industry 

in which it operates, and the challenges, 

innovations and changes that will shape 

that industry. It involves probing as to future 

customers or products and questioning what 

your market could look like in the next 5 or 

10 years? Critically, a good general counsel 

has an awareness of their CEO’s views to the 

above matters and what are their plans and 

strategies for the business. 

Whilst some knowledge can be gained through 

reading the materials published by or about 

your company, there are further options to build 

deeper knowledge and keep such current: 

• Develop and maintain strong relationships 

with the managers and other key staff 

in your business. Get them to talk about 

their work in their space, and listen 

carefully to identify their priorities, concerns 

and successes. 

• Build a network of persons with industry 

and business expertise, as these can be the 

people who alert you to industry changes 

or challenges or share their innovations and 

insights. Where possible join committees 

and industry associations, volunteer to 

sit on boards that will allow you to work 

with others from differing professional 

backgrounds and training; seek to attend 

conferences with a commercial theme not 

simply the legal updates. 

• Create the opportunities to meet regularly 

with the senior executives and ask them 

of their priorities, key milestones and 

timeframes. Understand their deliverables 

and critical deadlines; what they have 

committed to achieving for the board 

of directors, employees and the 

shareholders? Ask the senior executives as 

to their preferred systems of reporting or 

discussing developments. 

Obtaining this deeper knowledge will only 

be of value if effectively applied to the way 

in which general counsel perform their roles 

and engage with the C-suite. Understanding 

the priorities of your CEO allows you to make 

informed choices as to what to report or 

recommend to them and why. For example, 

in seeking advice on a proposed deal, few 

senior executives are interested in hearing 

about every theoretical risk or permutations 

of a contract. They want to know what are the 

genuine risks that will have a material 

and commercial impact on the business. 

Presenting advice with such a focussed 

approach will be one of the primary areas in 

which the C-Suite recognise greater value 

from their in-house counsel. However, there 

are further considerations that will also lead to 

enhancing the value of your contribution to 

senior executives. 

Being solution focused. 

In emphasising the need for general counsel to 

think commercially, no senior executive wants 


acla.com.au 

their in house lawyers to leave behind the 

legal expertise they bring to the role. However, 

the exercise of great legal reasoning should go 

hand-in-hand with a commercial focus. 

What is being asked is for general counsel to 

apply and exercise their legal expertise in a 

strategic and results driven manner. That is, to 

exercise a business judgment in parallel with 

legal advice and work. Whilst relatively easy 

to write about, the skill involved in exercising 

judgment cannot be underestimated. It is 

developed through practice and observation 

of other senior executives but can also be 

fostered through: 

• Ensuring that all advice and work is 

focussed on what can be achieved or what 

is possible rather than identifying only 

impediments or barriers. 

• Promoting a culture in the in-house 

team which promotes collaboration 

with the business to find solutions and 

present options to achieve a better or 

complimentary result for the business. 

• Encouraging frank and regular dialogue 

with the senior executives. 

• Knowing when and how to challenge 

the status quo or articulate a position 

of difference. This is a critical role of any 

general counsel and often the most testing. 

If such opinions are grounded in a context 

of the long term benefit of the business, 

and with awareness of the senior executives’ 

motivations, it will be recognised as 

something of real value by the C-suite. 

Identifying and presenting 

the opportunities 

There is a tendency for some to describe 

the role of in-house counsel as a reactive 

function rather than proactive feature of the 

business. The work is often seen as drafting 

legal documents once a deal is struck; 

advising when issues or dispute arise, advising 

if a proposal can be pursued, attending to 

reporting and governance requirements. 

However, the in-house legal team are the 

beneficiaries of unique insight and knowledge 

about their business’ practices and operations. 

This provides a great opportunity to add value 

through generating recommendations or 

proposals. For example: 

• In regularly reviewing the contracts or 

documents used by the business, general 

counsel can identify practices or systematic 

issues not always obvious to others in the 

organisation. Rather than simply reporting 

that a particular issue has arisen multiple 

times, general counsel should seek to 

suggest changes to documents or practices 

that avoid repeated issues or improve 

efficiencies for the business. 

• Through negotiations with customers 

or competitors or suppliers, general 

counsel have a unique insight to the 

motivations or concerns of other 

organisations. Sharing these observations, 

even informally, with the senior executive 

will allow them to consider how they could 

maximise their position in a deal or identify 

market opportunities. 

• In their contact with external legal 

providers or the in-house lawyers for other 

companies, general counsel can often 

be the first to learn of developments that 

could have application for your market or 

business. Rather than merely reporting on 

a change in a regulated market or a recent 

court decision, a good general counsel 

will invest time to consider how that 

change could present both challenges and 

opportunities to the business and suggest 

such matters to the relevant executive. 

There is little doubt that developing the 

practices and awareness outlined above 

requires a considerable investment of a 

general counsel’s time and focus. 

However, such investment is critical to 

forming the relationship of trusted advisor 

to the senior executives thereby ensuring 

you are in the position to add real value to 

them and your business. 


37


CROSS-BORDER CONTRACTS – 

BEWARE, THINGS MAY GO WRONG! 

Albert Monichino QC 

President of the Australian Branch of the 

Chartered Institute of Arbitrators. Barrister, 

arbitrator and mediator. Albert has a general 

commercial litigation practice – particularly 

in contract, corporations and construction 

law – in the Supreme and Federal Courts, 

and also in commercial arbitrations (both 

domestic and international). 

Trade and commerce is increasingly 

global in nature. Currently about 10 

percent of the world’s trade, by volume, 

is carried into and out of Australia by sea. The 

recent China-Australia Free Trade Agreement 

(ChAFTA), will only heighten the international 

focus of Australian businesses. Commercial 

disputes between Australian parties and 

foreign parties in other jurisdictions are bound 

to increase. How are they to be resolved? 

This article focuses on key considerations 

when drafting dispute resolution clauses 

in cross-border contracts. A sequel to this 

article will look at drafting arbitration clauses 

in such contracts. 

Arbitrate or Litigate? 

Although a broad spectrum of mechanisms 

are available, the usual choice of dispute 

resolution mechanism is between arbitration 

and litigation. Where litigation is selected, 

an exclusive jurisdiction clause may be used 

to give exclusive power to a court from a 

single jurisdiction to resolve the dispute. An 

arbitration clause, by contrast, gives dispute 

resolution power to an arbitral tribunal to be 

supervised by the courts at the nominated 

seat of the arbitration. 

The choice of mechanism depends on the 

nature of the transaction and the needs of 

the parties. Litigation may be selected, where 

parties share confidence in the quality of the 

courts in a jurisdiction, and are content to 

have their dispute resolved in public. Litigation 

may be as expeditious and cost-effective as 

arbitration. However, currently arbitration is 

the preferred mechanism for resolving crossborder 

disputes. This is likely to remain so for 

the foreseeable future. There are three main 

reasons why this is so. 

Enforceability 

Arbitration enjoys a significant enforcement 

advantage over litigation. This is important 

where a party does not voluntarily comply 

with the result of the dispute resolution 

process and assets need to be attached. 

This advantage is enabled by the international 

commercial arbitration system’s two pillars: the 

Convention on the Recognition and Enforcement 

of Foreign Awards made in New York on 10 

June 1958 (the ‘New York Convention’) and the 

template arbitral law, the UNCITRAL Model Law 

on International Commercial Arbitration (the 

‘Model Law’). 

Under the New York Convention, an arbitral 

award rendered in a New York Convention 

country is usually enforceable in another 

New York Convention country. The Model 

Law similarly deals with the enforcement of 

arbitration agreements and arbitration awards. 

Both instruments contain limited grounds for 

resisting enforcement. These grounds do not 

include errors of law or fact. 

By contrast, court decisions do not benefit 

from the same enforceability. Under the Hague 

Convention on Choice of Court Agreements 2005 

(the “Choice of Court Convention”), judgments 

resulting from jurisdiction exercised in 

accordance with a choice of court agreement 

would be recognised and enforced in the 

courts of other contracting states. Yet to date 

the Choice of Court Convention is not yet in 

force. It may be ratified in the near future, once 

the EU ratifies it later this year. It would then 

be open for signature by other nation states. 

The recently established Singapore 

International Commercial Court (‘SICC’) is likely 

to suffer similar problems with enforcing its 

judgments in other jurisdictions, despite its 

undoubted potential as a regional court for 

the Asia-Pacific region. 

Reciprocal, State to State agreements for 

the enforcement of judgments, such as the 

agreement between Australia and New 

Zealand, offer some certainty to litigants as 

to where a court judgment may be enforced. 

However, reciprocal agreements are the 

exception rather than the rule at present. 

In practice, the right to enforce a court 

judgment or arbitral award may prove difficult. 

It is for this reason that many parties opt to 

settle their dispute, even after a judgment or 

award has been obtained. 

Forum allocation 

Under the New York Convention (also mirrored 

in the Model Law), if a proceeding is brought 

in a court in a New York Convention (or 

Model Law) jurisdiction in the face of an 

arbitration agreement, the relevant court 

is mandated to stay the court proceedings 

unless the arbitration agreement is ‘null, void 

or inoperative’. Litigation does not enjoy such 

forum allocation rules. 

Confidence in the forum 

Finally, the ability for both parties to an 

arbitration proceeding to either appoint the 

sole arbitrator, or to each appoint one of the 


acla.com.au 

arbitrators to a three person arbitral panel, 

ensures greater confidence in the fairness of 

the resulting arbitral award. In litigation, by 

contrast, a dispute may be submitted to a 

judge with whom the parties may have very 

little cultural or linguistic affinity. 

Choice of Law 

The law which will govern the contract and 

resolve the merits of any future disputes (the 

‘choice of law’) should next be selected. This 

decision may have serious consequences. For 

example, in a commercial contract between 

an Australian party and a Chinese party the 

results may vary considerably depending 

on whether the choice of law is Australian, 

Chinese, or a neutral third system of law. 

Choice of Law and Arbitration 

Arbitration offers considerable flexibility 

in choice of law. Under the Model Law an 

arbitral tribunal must decide the dispute in 

accordance with the parties’ selected ‘rules of 

law’. Such ‘rules of law’ need not be national 

laws. Parties could therefore select the 

UNIDROIT Principles of International Commercial 

Contracts (the UNIDROIT Principles) or the 

United Nations Convention on Contracts for the 

International Sale of Goods (the CISG) which are 

neutral, yet also structurally similar to many 

national contract laws around the globe. 

Choice of Law and Litigation 

On the other hand, parties selecting litigation 

are currently restricted to national law in 

their choice of law. In Australia (as in most 

jurisdictions), the courts may, in the exercise 

of their discretion, decline jurisdiction to apply 

a foreign law. This means that parties who 

specify that their chosen forum should apply a 

system of law which is foreign to it risk having 

their intentions over-ridden by the courts of 

the forum hearing the dispute. 

Mandatory Laws 

Finally, so-called ‘mandatory laws’ may apply 

to a cross-border contract, irrespective of the 

parties’ choice of law. Usually, only the courts 

of the state which has the mandatory law will 

insist on its application. Mandatory laws may 

represent a nasty surprise, so it is desirable to 

anticipate their potential application. 

Litigation 

Forum Selection 

If a party decides to litigate rather than 

arbitrate, it should select the forum carefully. 

The prospects of enforcing the resulting 

judgment, the speed at which a matter 

may be brought to trial, the quality of the 

judiciary, and the neutrality and impartiality 

of a particular court will be of particular 

importance. Where one of the parties is a 

state-owned enterprise, for example, it is 

wise to submit a dispute to a neutral 

jurisdiction rather than litigating before the 

courts of that enterprise. 

Drafting an exclusive jurisdiction clause 

A jurisdiction clause implements the choice 

of forum and choice of governing law. It is 

a major tool for limiting jurisdictional risk 

and exposure, restricting ‘forum shopping’ 

whereby a party seeks to select a forum 

which offers them advantages over litigating 

in another forum. 

Jurisdiction clauses may be non- exclusive or 

exclusive. Non-exclusive jurisdiction clauses 

identify a place for litigation but allow 

parties to proceed elsewhere if they wish. 

Exclusive jurisdiction clauses, meanwhile, 

create a contractual obligation to sue or be 

sued in the stipulated jurisdiction. If this is 

breached, the court of the forum may grant an 

anti-suit injunction to restrain the pursuit 

of the foreign proceeding. 

An exclusive jurisdiction clause might be 

drafted as follows: 

“Each of the parties to this Agreement irrevocably 

agrees that the courts of [Victoria] shall have 

exclusive jurisdiction to hear and determine any 

disputes, which may arise out of, or in connection 

with, this Agreement, including its formation, 

validity, interpretation or termination and, for 

these purposes, each party irrevocably submits 

to the jurisdiction of the courts of [Victoria] 

to determine any such disputes according to 

[Victorian] law”. 

Recent Australian court decisions have 

acknowledged the value and role of exclusive 

jurisdiction clauses. ‘Strong reasons’ are now 

required for a party to resist enforcement of 

an exclusive (foreign) jurisdiction clause. Mere 

convenience of hearing the dispute in another 

jurisdiction is not such a reason. 

Finally, lawyers drafting an exclusive 

jurisdiction clause should be particularly 

aware of the dangers of undoing the effect 

of such a clause through inconsistent clauses 

in the contract which may undermine the 

certainty which an exclusive jurisdiction clause 

is designed to provide. 

The author gratefully acknowledges the valuable 

assistance of Andrew Masters, Law Graduate, in 

the preparation of this article. 


39


UPDATE FROM THE COURTS 

Be careful what you bargain for in settling a dispute; the Court has recently demonstrated that it will look 

closely at what you agreed, and hold you to it. 

Kathryn Howard 

Kathryn is a partner in Holding Redlich’s 

Dispute Resolution & Litigation group, who has 

practised in Melbourne, Tokyo and London. 

Kathryn advises both business and government 

on the full spectrum of disputes, always with a 

primary eye on implications for the client’s dayto-day 

activities both internally and externally. 

Roxanne Burd 

Roxanne is a fourth year solicitor in Holding 

Redlich’s Dispute Resolution & Litigation group, 

with a key focus on commercial matters. 

Full and final settlement 

– what does it mean? 

A 

recent decision of the New South 

Wales Supreme Court 1 considered the 

meaning of the phrase “full and final 

settlement” in the context of the claim, and 

found that the parties intended to exhaust the 

claim completely and conclude the litigation. 

The case concerned the effect of without 

prejudice negotiations to settle an estate 

claim, which was deliberately brought by the 

claimant out of time and immediately after the 

claimant had been discharged as a bankrupt. 

On 1 May 2014, the plaintiff’s solicitors made 

an offer “in full and final settlement” of its 

client’s claim on the basis that their client 

would: (a) receive a lump sum payment; and 

(b) pay his own legal costs. Six days later, on 

7 May 2014, and before expiry of the offer, the 

defendant’s solicitors accepted the offer and 

advised that terms of settlement and a minute 

of consent order would follow. 

The dispute was subject to a statutory 

requirement that any settlement required 

approval of the Court. When the parties 

sought this consent, the Court required 

submissions about why the Court should 

exercise its discretion to make the proposed 

orders (to extend the time limit). The Court 

observed that this seems to have prompted 

the defendant, in the days leading up to the 

hearing, to revise down the amount of the 

lump sum payment. 

The question for the Court was whether the 

parties had already entered into a binding 

agreement on 7 May 2014. 

The Court’s reasoning 

The Court considered the “heart” of what the 

parties intended, in the statutory context of 

the Succession Act. 

The Court found that the parties agreed 

that the lump sum payment would exhaust 

the claimant’s rights against the estate; 

accordingly, the agreement required the 

parties to seek the Court’s approval for a 

release under the Succession Act. 

What does this mean for you? 

This case is a salutary reminder to ensure 

that terms of settlement reflect the parties’ 

intentions, and have clear legal meaning 

within the statutory framework in which the 

terms must operate. 

If a settlement agreement is conditional 

upon an event occurring, an obligation 

being discharged or a statutory approval 

being obtained, ensure that the agreement 

states: (a) that the agreement is subject to the 

condition precedent being satisfied; and (b) 

who bears responsibility for discharging the 

condition precedent. 

When negotiating agreements, be clear about 

when the parties intend to be bound by the 

terms. If the agreement is subject to a formal 

agreement being executed, say so. If the 

agreement is intended to be binding upon 

acceptance without formal terms, say so. 

Binding heads of agreement; accord 

executory or accord and satisfaction? 

The New South Wales Court of Appeal 2 held 

that a heads of agreement executed by 

parties at the conclusion of a mediation 

constituted a binding and enforceable 

contract that had the effect of releasing the 

parties to the claim despite: 

• non-compliance with the heads of 

agreement; and 

• the heads of agreement not containing a 

release or bar to action, nor providing for 

what would occur in the event of breach. 

The case concerned an equitable claim for an 

interest in land held by the defendant. 

The parties attended mediation at the 

conclusion of which handwritten heads of 

agreement were executed, which provided for: 

• payment of the purchase price by the 

claimants to the defendant for the disputed 

land; and 

• after payment of the purchase price, 

execution of a consent order in respect of 

the proceedings (without articulation of the 

precise orders). 

A claimant changed his mind and the 

purchase price was not paid. The defendant 

sought a declaration that the heads of 

agreement was binding. 

At first instance, the New South Wales 

Supreme Court held that the heads of 

agreement was a mere accord executory; 

namely, that the heads of agreement did not 

give rise to new rights and obligations until 

the purchase price was paid, which had not 

happened. Accordingly, the case proceeded 

and the claimants established their equitable 

interests in the defendant’s land. 


acla.com.au 

The defendant appealed to the New South 

Wales Court of Appeal. 

The Court of Appeal’s reasoning 

The Court of Appeal considered the terms of 

the heads of agreement and construed the 

document as a whole, having regard to both 

its context and terms. The Court emphasised 

the importance of focusing on what the 

parties had agreed. 

The Court held that the parties had entered 

into an immediately binding agreement, in 

which the claimants accepted the defendant’s 

promise to sell the disputed land for a 

specified sum as being in satisfaction of the 

claimants’ causes of action in respect of the 

defendant’s interest in the land. 

In coming to this conclusion, the Court 

referred to the express terms of the 

agreement, which provided the heads of 

agreement would “have effect” and that stated 

“it is hereby agreed”. The Court noted the 

absence of an express release, but considered 

that the continuation of the claimants’ rights 

would be inconsistent with the purpose of the 

binding legal obligations created under the 

heads of agreement. 

The Court also observed some tension in 

the timing of the requirement to execute a 

consent order disposing of the proceeding 

after payment of the purchase price. However, 

the Court considered that this served the 

purpose of disposing of the proceedings and 

finalising costs of the proceedings, which 

were not otherwise dealt with under the 

heads of agreement. 

We note that this decision is currently 

subject to a special leave application to the 

High Court. 

What does this mean for you? 

When negotiating the settlement of a dispute 

or a proceeding, consider the following: 

• Do you intend that entry into the 

agreement will conclude the dispute or 

the proceeding? 

• Do you want pre-existing causes of action 

to remain intact? If not, have you included 

appropriately broad releases? 

• What will be the consequence if a 

party fails to perform their obligations or 

pay the settlement sum? Is this articulated 

in the agreement? 

• If there are proceedings on foot, at what 

point will they be disposed of and precisely 

what orders will be sought? Remember, 

a dismissal has a different effect to the 

discontinuance of a proceeding. 

While it is often a relief to settle a dispute, 

take care to ensure that such relief continues; 

in so doing, clearly document the terms of 

the agreement to reflect the intention of the 

parties and provide for what happens should 

one of the parties fail to honour their side of 

the agreement. 

Footnotes 

1 Balcomb v Brownleee [2015] NSWSC 36 

2 Jingalong Pty Limited v Todd [2015] NSWCA 7 

Today, 

take positive steps toward 

achieving your financial goals 

acla 




The end of financial year (EoFY) is fast approaching. By taking some simple steps, you can look to maximise 

opportunities to assist in building your superannuation and wealth, in a tax effective way, before 30 June 2015. * 

As a member of ACLA and it being a Corporate Partner, you'll receive: 

A complimentary # initial financial consultation 

A complimentary financial assessment report. 

To help ensure you are achieving your goals, HSBC is offering a complimentary one-on-one appointment 

with an HSBC Financial Planner. You are invited to get in contact with our financial experts on how you can: 

utilise EoFY strategies to improve your tax position 

make the most of your super 

protect your wealth 

invest to grow what you have. 

For more information about this and other offers or to book a review of your personal finances: 

Contact: ACT - John on (02) 6221 4612, NSW - Chris on (02) 8861 3952, 

QLD - Claire (07) 3174 1006, SA - Marian on (08) 7071 2016, 

VIC - Luke (03) 9981 7511, WA - Jarrod (08) 6141 5549, 

Others & Non-Metro - Subha on (02) 9005 8234 

Click: www.hsbc.com.au/acla Email: corporatepartners@hsbc.com.au 

If you do not wish to receive HSBC product offers and special promotions, you may tell us by telephoning us on 1300 308 008 or writing to us at HSBC Bank Australia Limited, 

GPO Box 5302, Sydney NSW 2001 *Available for a limited time only. Issued by HSBC Bank Australia Limited ABN 48 006 434 162. ASFL/Australian Credit Licence 232595. 

Terms, conditions, fees, charges and HSBC lending criteria apply. #Other fees and charges apply. This is general advice only, this brochure doesn’t take into account your 

objectives, financial situation or needs. You should consider these matters and read the relevant Product Disclosure Statement (PDS) before you make an investment decision. 

A copy of the PDS is available from our financial planners with the provision of advice. 


41


ACLA WOULD LIKE TO WELCOME 

The following new members to the association who joined in the 3 months to 1 May 2015 

AUSTRALIAN CAPITAL TERRITORY 

Kylie Browne 

Department of Communications 

Belinda Lewis 

Department of Human Services 

Melinda Teasdale Department of Communications 

Brett Walker 

Australian National University College of Law 

INTERNATIONAL 

PhilipHargrave 

Melbourne Buyers Advocates 

NEW SOUTH WALES 

Teresa Allan 

Capgemini Australia Pty Ltd 

Seshani Bala 

Primo Products Pty Ltd 

Rebecca Barnett Seven West Media 

Danielle Beazley Deloitte Touche Tohmatsu 

Sara Berrada 

SFDC Pty Ltd 

Chris Bevan 

UXC Limited 

Iona Borthwick Australian Payments Clearing 

Association Limited 

Yvette Cachia 

Inenco Group Pty Ltd 

Camilla Chan 

Medtronic Australasia Pty Ltd 

Michael Chance FujiXerox 

Rena Christmann UNSW Australia 

Kieran Chute 

Wesfarmers Limited 

Andrew Clarke 

Origin Energy Limited 

Sarah Corbett 

Steinhoff Asia Pacific 

Daisy Davis 

University of Newcastle 

Linda De Rosa 

O’Brien Glass Industries Limited 

Chris Diekman 

Roads and Maritime Services 

Navaneetha Dilipumakanth GlaxoSmithKline 

Michael Drew 

Oil Search Limited 

Caitlin Dugan 

SITA Australia 

Chantal Freeman SunRice 

Andrew Halter 

PayPal Australia Pty Limited 

Samantha Ho 

Rabobank 

Edwin Ho 

Sunnyfield 

Cassie Horn 

Canon Infromation System Research 

Australia Pty Ltd 

Sara Hughes 

Accor 

Nick Ireland 

Treasury Group Limited 

Catriona Jenkins CMCameron Consulting 

Tracey Jordan 

Charter Hall Group 

Sheena Joshi 

Atkinson Vinden 

Nataly Kab 

MetLife Insurance Limited 

Lisa Kavanagh 

Sodexo Australia Pty Limited 

Benjamin Klug 

Scentre Group 

Anna Kutner 

AdventBalance 

Andrew Laughlin 7 Wentworth Selborne 

Rebecca Lim 

Westpac Banking Corp 

Elizabeth McCarthy-Jones ANZ Global Wealth 

Ana-Gloria Medrano salesforce.com 

Thomas Mitchell Ratch-Australia Corporation 

Nicola Mostert 

ACE Insurance 

Maryann Muggleston AFC Asian Cup Australia 2015 

Ariki Ngatai 

Fletcher Building (Australia) Pty Ltd 

Heather Oswald Fletcher Building (Australia) Pty Ltd 

Brianna Parbury George Weston Foods 

Jessie Porteus 

Coca-Cola Amatil 

Jacqueline Roberts APP Corporation Pty Ltd 

Jeremy Shirm 

Attorney Generals Department 

Stephanie Sinclair-Fry Avant 

Antony Solomon PetSure (Australia) Pty Ltd 

Melissa Stanton Deloitte Touche Tohmatsu 

Lyndall Stoyles Asciano Limited 

Andrew Ta 

Scentre Group 

Ashur Tamson 

Valvoline 

Amanda Thompson Fletcher Building (Australia) Pty Ltd 

Peter Tompkins Downer EDI 

Simon Tuxen 

Westfield Holdings Limited 

Julia Virgo 

Clayton Utz Lawyers 

Jason Vongratsavai Rabobank 

Marianne Wells Dick Smith Electronics 

Danielle Wong 

Ernst & Young 

Mirjana Zagani Fitness First Australia Pty Limited 

QUEENSLAND 

Rick Anthon 

Orocobre Limited 

Toby Boys 

Holding Redlich 

Patricia Cabrera QIMR Berghofer Medical Research Institute 

Fiona Chapman QIMR Berghofer Medical Research Institute 

Scott Coulthart Mills Oakley Lawyers 

Darko Djaic 

Telstra Corporation 

Rebecca Dulhunty-Todd Ergon Energy 

Carmen Lewis 

Oliver Meehan 

Oxanda Edcuation 

Heidi Schweikert Schweikert Harris 

Jane Seawright CRCMining 

Phil Ware 

Stanwell Coporation 

Rachel Weeks 

Mills Oakley Lawyers 

Sarah Williamson Ergon Energy 

SOUTH AUSTRALIA 

Taryn Shearn 

People’s Choice Credit Union 

Patrick White 

Elders Rural Services Australia Limited 

VICTORIA 

Frances Anderson GM Holden Ltd 

Katrina Bobeff 

Computershare 

Jorja Cleeland 

Fonterra Australia Pty Ltd 

Calum Cook 

Bupa 

Justin Courmadias EnergyAustralia 

Michael de Vries V/Line 

Rowan Donohoue La Trobe Financial 

Stephanie Eastwood Linking Melbourne Authority 

Anthony Fameli SPG Investments Pty Ltd 

Marion Franks 

Transpacific Industries Group Ltd 

Michael Freier 

GPC Asia Pacific Pty Ltd 

Melissa Goode 

Australian Red Cross Society 

Anne Guidera 

Bupa 

Jessica Hall 

Ernst & Young 

Sonia Harb 

Origin Energy Limited 

Suzanne Harmer The Australian Psychological Society Limited 

Claude Harran 

Nissan Motor Co. (Australia) Pty Ltd 

Adam Harvey 

EnergyAustralia 

Rebecca Hocking Transport Accident Commission 

Rosie Hooper 

EBOS Group Ltd 

James Horton 

Target Australia 


acla.com.au 

Alison Huitfeldt 

Shoba Kanniappan 

Leila Kraushaar 

Julian Lambert 

Jaclyn Langford 

Andrew Lee 

May Low 

Mira Lutfi 

Tess Lye 

Angela Manolakos 

Maria Marinelli 

Dylan Matthews 

Matthew McCarthy 

Hannah McMurtrie 

Lachlan McMurtrie 

Luke Meikle 

Annika Memery 

Chris Miller 

Vera Mom 

Lucy Newham 

Michael Nibaldi 

Jennifer O’Brien 

Meg O’Keefe 

Carol Osullivan 

Aimee Pomogacs 

Rebecca Roberts 

Georgina Robertson 

Victoria Rowland 

Nick Ryan 

Doris Samyue 

Meaghan Simpson 

Jaimee Sluce 

Leoni Sonnenberg 

Suzi Stanicic 

Linfox Australia Pty Ltd 

Toyota Motor Corporation Australia Ltd 

Royal Melbourne Institute of Technology 

Law In Order 

Lonely Planet Publications Pty Ltd 


Ridley Corporation Ltd 

L’Oreal Australia 

Epworth Health Care 

iSelect Limited 

Bupa 

Simply Energy 

Allens 

Bupa 

Newcrest Mining LImited 

Federation Centres 

Mahlab Recruitment (VIC) Pty Ltd 


Axieo Operations (Australia) Pty Ltd 

Royal Melbourne Institute of Technology 

Interactive 

Epworth Health Care 

Wesfarmers Limited 

Ultradata Australia Pty Limited 

Acquire Learning Pty Ltd 

St Vincent’s Hospital Melbourne 





Linfox Australia Pty Ltd 

GlaxoSmithKline 


Coles 

Li Lin Tan 


Chris Tay 

ESSSuper 

Simon Taylor 


Alida Vandewiele Bombora Technologies Pty Ltd 

Nikki Vassilopoulos EnergyAustralia 

Damian Walsh 

Bendigo & Adelaide Bank 

Jeremy Weeks 

Monash University 

Sally Westh 

Ablethorpe Recruitment 

Karen Wise 

Wise Workplace Solutions 

Brendan Wood Transpacific Industries Group Ltd 

Marina Zabrieszach Assetco 

WESTERN AUSTRALIA 

Kym Abbott 

Toll Group 

Danielle Atlas 

INPEX Australia Pty Ltd 

Ruhi Bassari 

Western Power 

Tracy Chew 

Automotive Holdings Group Limited 

Penelope Ford 

AdventBalance 

Barbara Gordon Resource Capital Funds 

Jemma Holland Toll Group 

Samuel Knowles Clough Projects Pty Ltd 

Karen Navaratnam Western Power 

Dolores O’Hare Wood Group 

Natasha Panic 

St John of God Health Care Inc 

Dean Powell 

Fortescue Metals Group Ltd 

Stephen Power Karoon Gas Australia Limited 

Andrea Rawson Wesfarmers Limited 

Angela Stavrianou Fortescue Metals Group Ltd 

Nicole Szorenyi INPEX Corporation 

Jennifer Tate 

Legal and Legislative Services Department 

of Health WA 

Candice Van Der Plas Doric Group 

Cameron Wilson Iluka Resources 

Liz Wreck 

Bis Industries Limited 

ACLA CORPORATE ALLIANCE PARTNERS 


43

Australian Corporate Lawyer - Winter 2015

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