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27 February 2015

Law Mutual Quarterly February Newsletter – eMutual

In this first edition for 2015, we include some helpful links in relation to the very topical issue of National e-Conveyancing and how you can prepare your practice for the changes which will affect Western Australia, due to commence in May 2015. In this quarter’s 'Case in Point', we look at a recent decision which affirms the scope of loss of chance cases in Australia.

We also introduce two new members to the Professional Insurance Indemnity Committee and acknowledge the work and commitment of our two former members, Brendan Ashdown and Craig Slater.

Plans are underway for the 2015/2016 renewal period negotiating premiums with underwriters and putting in place the requisite insurance requirements. We also celebrate a milestone in risk management delivery, with the release of online risk management seminars to some rural and regional practitioners with plans to extend this service to other practitioners in April 2015.

For more information, you can visit our website. As a valued client, we are interested in your feedback and how we can better serve your needs.


David Price
Chief Executive Officer

Know your Team

The Professional Indemnity Insurance Management Committee has two new appointees for 2015, Matthew Keogh and Nathan Ebbs.

Matthew Keogh
BA (Hons) LLB (UNDA)

Matthew Keogh is the 2015 President of the Law Society of Western Australia and works as a Senior Associate in the Disputes Group at Herbert Smith Freehills, practising in contentious regulatory matters, white collar crime, anti-bribery and corruption, regulated assets and insurance.

He is the Chairperson of the Law Access board, a director of the Law Council of Australia, a member of numerous Law Society committees, the Committee of Management of the Street Law WA community legal centre, the Law Council of Australia’s Legal Education Committee and also the former chair of its Australian Young Lawyers Committee. In 2009 Matthew was awarded as the Australian Young Lawyer of the Year.

Nathan Ebbs

Nathan is a Principal of Bennett + Co. Nathan was admitted to practice in December 2005. He specialises in the areas of general and commercial litigation and mining and resources litigation, with a particular emphasis on Corporations Act matters, contractual disputes, directors’ and officers’ liability, and Competition and Consumer Act matters. Nathan has considerable experience running complex litigation for statutory corporations and mining companies which has included a number of large commercial litigation trials in the Supreme Court of Western Australia. Nathan is a board member of Identity WA and also a member of the advisory committee for Radio Lollipop.

What's On

2014/2015 Compulsory Risk Management Seminars

Law Mutual, in conjunction with the Law Society of Western Australia, is delighted to be able to now offer online access to this year’s compulsory risk management seminars. Places are limited and will be released in stages. The first stage of release has been made available to some rural and regional firms as well as firms who have previously had these seminars conducted in-house. The second stage of online seminars will be released to those practitioners who have not registered to attend one of the face to face seminars. This release is scheduled to occur in April 2015. Further information will be provided regarding the release of these seminars on the Law Mutual website, Friday Facts and future enewsletters.

Online allows practitioners to complete the seminars in their own time at their pace with completion required by 30 June 2015. The early feedback in relation to the online seminars has been quite positive, stating that the online delivery is efficient and effective, especially for people who work part-time.

A country roadshow has been planned for Bunbury and Albany.  If you are registering for one of these risk management seminars, you may want to consider signing up for the other events being offered at the same time. The Society and the Legal Practice Board will be delivering educational sessions in conjunction with the scheduled risk management face to face seminars. Following the roadshow will be the Society Club networking drinks for practitioners who would like to take the opportunity to connect and socialise. A schedule for the risk management seminars is available online and is the easiest way to register.

Annual Renewal Process

The Law Mutual team is gearing up for the 2015/2016 renewals. Please note that your insurance/exemption does not automatically renew. It is necessary to complete an application/exemption form every insurance year to ensure your continuing compliance. You will be notified by email when it is time to complete the necessary form for the 2015/2016 year.

Application forms for the 2015/2016 policy period are now available on our website for completion and return by 15 March 2015. We have made these forms interactive so you can complete and store electronically. To make life easier, we have also set up two additional email addresses specifically for renewals and exemptions.

Please remember to advise Law Mutual of any changes of email address or if it is your preference to have communications sent via the post. Unless we are advised to the contrary, all communications will be sent electronically.

If you are intending to practise law in Western Australia, it is a statutory requirement for you to hold a current Professional Indemnity Insurance Policy. A Legal Practising Certificate can only be issued if you are compliant with this requirement. Further information on Profession Indemnity Insurance arrangements can be found on our website.

Don’t forget about premium funding which is available to assist with smoothing payments.

Risk Management Initiative: Quality Practice Standard

Law Mutual provides a 7 percent reduction in its professional indemnity insurance premiums to accredited QPS firms for the first year followed by a 5 percent reduction in its second and subsequent years.

Firms with QPS accreditation acknowledge the advantages in having risk management strategies in place to reduce claims prone situations.

The Society’s Quality Practice Standard was first developed in 1996 and is based on the international model for quality management known as the ISO 9001. The process to become an approved quality practice in the standard, involves looking at your firm’s current practice operations and providing assistance. This involves standardising your procedures in relation to taking instructions, matter management, closure of matters and other administrative procedures relating to human resources, knowledge management and client satisfaction assessment, just to name a few.

For further information please download the latest QPS newsletter or visit the website.

National e-Conveyancing

National Electronic Conveyancing is coming to WA in May 2015. Learn about what you can do to make sure your practice is ready.

Removing the Mystique
The February issue of Brief features an article which endeavours to explain, in plain language, what National e-Conveyancing means for lawyers and conveyancers.
Read the full article

Get your practice ready for e-Conveyancing
The Law Society of Western Australia is conducting e-Conveyancing forums in Perth, Fremantle, Bunbury and Albany. Hear direct from the experts about the implementation of e-Conveyancing in NSW, VIC and QLD. Have an opportunity to ask questions from key players.
Find out more

Law Council Update
The Law Council of Australia has produced a document updating practitioners on recent developments on the National Electronic Conveyancing System (NECS).

Case in Point – Loss of Chance: Standard of proof and subjective test

Falkingham v Hoffmans (a firm) [2014] WASCA 140 (‘Falkingham’) recently affirmed the seminal Australian decision relating to loss of chance cases, Sellars v Adelaide Petroleum NL and Others (1994) 120 ALR 16 (‘Sellars’).  Falkingham involved a claim against a firm of solicitors for their failure to issue a writ, and the plaintiff’s subsequent lost opportunity to commence proceedings against a negligent neurosurgeon.

Falkingham and Sellars establish a number of key points to be considered when dealing with loss of chance cases, such as:

  • the issue of causation is governed by the general standard of proof in civil actions. As such, the plaintiff must prove on the balance of probabilities that he or she has sustained some loss or damage as a result of the defendant’s conduct; 
  • a plaintiff does not have to establish that they would have proceeded with the action to trial, it is sufficient to prove on the balance of probabilities that they would have proceeded to a valuable settlement;
  • the assessment of whether the plaintiff would have pursued the cause of action is determined subjectively, that is, by what the appellant (rather than a reasonable person) would have done in the circumstances;
  • while the loss or damage sustained must have some value (not being a negligible value), it is to be ascertained by reference to the degree of probabilities or possibilities and not on the balance of probabilities;
  • the test to determine the lost chance should be “global and evaluative in nature rather than mathematical” and, generally, appellate restraint is appropriate (in that the trial judge’s evaluation of the lost chance will not be disturbed).

Find out more


Do I need to attend the compulsory risk management seminar each year?

All practitioners who hold professional indemnity insurance with Law Mutual are required to attend the compulsory risk management seminars. This includes full-time and part-time employed practitioners, sole practitioners, low fee earners including nil fee earners, directors (legally qualified) and partners.

Do I need to have professional indemnity insurance through Law Mutual( WA) if I am a migration mgent and hold a current practising certificate?

A migration mgent holding a WA practising certificate is in all probability doing legal work as defined in the Legal Professions Act 2008 (WA) and requires professional indemnity insurance to provide cover for those legal services.

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