Dispersing the Confusing Nature of Body Corporate Law
We speak with Marc Mercier, a Barrister based in Brisbane, who touches on corporate law, human rights and equality, as well as the keys behind to becoming a successful barrister.
Marc is soon releasing the first body corporate law textbook for Queensland, which will help simplify the complicated, and somewhat fragmented nature of the law.
His textbook puts together a lot of practical advice, including flowcharts which will help corporate bodies deal with what is actually a very fragmented jurisdiction; during a dispute, you need to pick out and refer to many acts and regulatory models and so the jurisdictions are very complicated and fragmented.
Marc says: “When you have gathered the legislation, you find that a lot of the situations do not fit in, or there are grey areas and so this is where the tribunal and high court decisions come into play.
“Cases can often go through a number of interpretations and reversions until a definite view helps determine a generic term which cuts across literally everything in the body corporate legislation.”
His book, which will be published at the end of this year, will contain practical information on the application of the law, including case law, and policy documents that influence the interpretation of and application of law relating to body corporates.
You hold a Bachelor of Science as well as a Bachelor of Laws; what led you to transition from science to law, and what was the reason behind choosing to do a Masters in Law?
I have a diverse background as I started science with a focus in forensics; my original intent was to either do medicine or medical law. However, during my fourth year of study, my interest in law increased and so I considered pursuing a career in law.
In between this time, I had also completed a degree in music. My entry into the legal industry took place out of interest, and my music degree really helped make that transition run smoother.
Do you ever find that your background in science and the technical aspects behind it have helped you when practising law?
There are a lot of analytical aspects associated with forensics, and you really have to finely examine situations, such as causes of death; I would definitely say that this cuts across to how you really interpret legislation as well. Science is very analytical, there is a lot of memorising and these factors are parallel to law: you have to analyse back to the case and apply it.
As a family dispute resolution practitioner, what is the most challenging part of the role?
I do commercial mediation, as well as family mediation and I find that during family law, when the emotional aspect starts to kick in during mediation, is when it becomes more challenging. You have got to give more of yourself to really pay attention to manage the dispute.
On the other hand during commercial mediation, the parties – with exceptions – are less emotionally attached to the dispute. I think family mediations are definitely the most challenging as they take a lot out of you; I think maintaining a balance between commercial mediation and family mediation is vital for me, as focusing solely on family law would take a toll, personally, on me.
What different challenges does commercial mediation bring?
Some of the matters can be complex – just as much as family mediation can be complex – however, with commercial matters, you have more complicated arrangements, across a broader range of issues. You need to have some appreciation of company law. It can be a very broad scope of law and it comes along with very prescriptive rules, especially when it comes to bankruptcy and certain commercial strategies. You also need to ensure you are not there dictating the parties, but you still need to have a strong understanding of the disputes, otherwise it is hard to negotiate and facilitate the parties.
Out of the two, which do you think benefits more from mediation: family or commercial law?
In general, I think family law, as it creates possibility to allows the parties to get past the emotional aspect; the process is quite traumatic for some people and mediation can help the parties to get over the dispute a lot quicker, which thus helps the healing process.
In the past, you have dealt with complex anti-discrimination cases; can you talk Lawyer Monthly through how you overcame the complexity behind these cases?
Anti-discrimination is a human rights issue in many ways. I was previously the principal conciliator for the anti-discrimination commission and because I had that role, I often undertook more complex, media sensitive and multifaceted disputes. This was challenging due to the broad tactics and scope of such a case. Often when someone breaches the anti-discrimination legislation, they are not just breaching one very narrow aspect and there could be multiple different levels associated with their misconduct. They tend to consider whether certain human rights have been breached, rather than whether you will get penalties or settlements to negotiate. The moral aspect to it has a huge impact and influence on the challenge I face. This is further enhanced by the fact that many cases see me dealing with large organisations; schools and big multinational companies can make mistakes and ultimately, an apology is required.
Is there anything in anti-discrimination legislation, or other legislative changes in Australia, that you think needs amending?
There are issues regarding the measures on how a dispute is brought up; there can be fictitious claims and the way in which a particular party goes about and makes claims against a large company, as they know that the company will want to settle.
However, where there are incorrect cases being brought to light, there are also very unfortunate cases too, whereby a party has been bullied, perhaps due to their ethnicity or age which can render the person as incapable of working. There are some stark differences when it comes to damages and I think there is always room for improvement when regarding ways in which fictitious claims can be sifted through; claims are easy to make and are difficult to disprove.
Body corporate legislation is currently undergoing a big shift in a lot of its concepts. There are over 46,000 body corporate inquires right now. It is part of the city plan – denser living is a way to accommodate growth; invariably you start off with a piece of legislation that is satisfactory for a while and then when different issues come to light, such as debt recovery, then you begin to find a need for change. At the moment, the property law review committee has stated recommendations to state government and that has resulted in many changes.
Another example of this, is to if someone has the right to vote. This can have a big difference in outcomes in body corporate. The current legislation recognises this, but it does not recognise the whole scope of conditions to substantiate the relationship there.
There are many controversial aspects to consider, such as certain debt recovery processes and how the body corporate can claim legal costs from a debtor. I operate a body corporate management company and we deal with these issues on a more global basis, and not only do I deal with it on a legal practitioner end but also from the body corporate manager perspective, thus making it more practical alongside the vital legal notions.
I also find that in body corporate law the legislation is extremely prescriptive and relies on case law. However, case law sometimes need to catch up to certain things, such as technology. Even to this day, technology is not completely dealt with, an instance being electronic voting; the legislation is provisioned for it, but there are no real rules to how that practically looks like, because it is such a new concept. I think the outcome of this is that the cases will – in its bid to identify and solve the problems certain scenarios can present -, in fact make it more and more complicated. You cannot dismiss that some cases will be clarified, but in some instances, it will widen the possibilities, which in some situations can complicate things.
If you were to fast forward five or ten years, how much do you see these issues in body corporate law progressing? What do you envision and what are you anticipating?
I think in ten years you will begin to have technology kicking in and the ability to utilise it, where we can understand its rules and applications, enabling it to be a lot more defined.
I have to say the body corporate and community management act which was first passed in 1997, is only now undergoing review; there have been certain aspects that have been reviewed over the years, but currently there is quite a large review process addressing a number of areas of the law.
We are also hoping for it to become simplified as some of the rules are very complicated. In some situations, corporate bodies will sometimes have to look at a multitude of different sections, not even in the act but in other regulations and consider other legislation to truly understand their legal position.
Moreover, legislation is one thing, but it is a jurisdiction that superimposes what is called a ‘just inequitable precept’, where an adjudicator can finalise a decision, although the “black and white” law states something else. It may be inequitable for a particular time frame for it to being carried out and so the adjudicator has the power to “bend the rules”. That shift in stance can make it difficult, and again, that is where the case law comes in. It is somewhat ironic, as we have the ability to bend the law, which is very black and white, yet in alterative situations the law is highly prescriptive.
With Australia casting their vote on same-sex marriages, do you think more could be done for the corporate environment to embrace changes in equality?
I think some corporate environments are built in a way that does not always embrace change, however, things are slowly progressing. For example, some corporate environments have that traditional male presence, but I do think this is changing; the workplace has come a long way in terms of equality, because certain issues and debates are in the media all the time. In relation to gay marriage, we have a high level of politicians speaking about I, which helps shift the voting and may pave the way for equality in other areas. You don’t really get much inequality in body corporate, for example, although there could be anti-discrimination issues, which would require an entirely different application. Nonetheless in the workplace, I think a positive shift to equality will be due to the current changes which are undergoing, such as same-sex voting, which will thus pave the way. We ought to bear in mind, however, that there could always be more done to ensure equality is thoroughly embraced.
What do you think makes a successful barrister?
The ability to think outside the box is very important. In law, you learn how to interpret legislation; a good lawyer should be able to pick a piece of legislation in any jurisdiction and be able to interpret it and use it to their advantage in any case.
another thing is organisation – not only in practice, but also how you approach an opinion and litigation; how you organise time frames in civil litigation, and in essence, organising your client will help you gain the best outcome for them.
I also think that the ability to communicate is extremely important. You ought to be persuasive with your client in order to strongly suggest the best outcome for them. When arguing a case in front of a court, you need to persuade and communicate why certain legalisation should be applied in a particular way. Interpreting communication is also important; during mediation, sometimes, nonverbal cues are very telling of how the party is progressing. You need to be able to write well and ensure you communicate enough across, in a succinct manner. Communication in the multitude of forms it comes in, is a tool a barrister must master; it’s your stock of trade in this industry.
What is the most motivating aspect of corporate law?
I think the outcome you reach is motivating; if it is to do with legal practice, for example, you had to argue an application to why a vote should be able to pass, the rewarding aspect is putting together your ideas for legislation, in such a way that is highly persuasive and actually obtains the outcome for your clients. In mediation, whilst it is not your focus, the most rewarding thing is bringing a solution that both parties can live with.
Marc J. Mercier
Barrister at Law
Mediator
www.marcmercier.com.au
Marc Mercier holds a Bachelor of Science (majoring in Anatomy, Physiology and Forensics), a Bachelor of Laws and a Master of Laws (specialising in litigation and dispute management) from the University of Queensland, is admitted as a Barrister-at-Law of the Supreme Court of Queensland and of the High Court of Australia, with a current practicing certificate, and is a Nationally Accredited Mediator in Australia through Bond University and the University of Queensland. Marc is also a Family Dispute Resolution Practitioner, pursuant to the Family Law Act 1975 (Cth) and through the Practitioner Registration Unit of the Federal Attorney-General’s Department.
Initially, Marc commenced practice as a Barrister, engaging as counsel on behalf of the Queensland Office of the Director of Public Prosecutions, prosecuting a broad range of criminal matters, including confiscation of proceeds of crime, complex Supreme Court bail applications, sentencing and prosecution of serious offences, appearing before every Supreme and District Court Judge at that time.
Marc then commenced work at the Private Bar of Queensland as a Barrister-at-Law, undertaking a broad range of matters concerning commercial, property, industrial, family and criminal law. Additionally, Marc conducted mediations, civil and criminal trials, and applications in the jurisdictions of the Court of Appeal, Supreme Court, Industrial Court, Family Court and lower courts.
Marc’s broad experience and high-level qualifications allow him to assist bodies corporate in complex matters, which often touch on subsidiary body corporate issues.
