A Decade of Insights and a Guide to Future Litigation

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1 Ten Years of the Civil Procedure Act 2005 (NSW) Never Stand Still Law A Decade of Insights and a Guide to Future Litigation Wednesday 18 February 2015 Banco Court, Supreme Court of New South Wales

2 Programme The Civil Procedure Act 2005 together with the Uniform Civil Procedure Rules 2005 started with the modest goal to streamline and simplify procedures across all levels of the civil justice system. However the new Act embraced the importance of case management and elevated its significance through the mandatory legislative requirement that the court must seek to facilitate the just, quick and cheap resolution of the real issues in the proceedings. From this central objective support for a number of procedural changes has been found. This conference celebrates the tenth anniversary of the Civil Procedure Act 2005 by examining the changes the legislation has inspired and considering what future reforms may be needed. The conference pays specific attention to key practical issues such as case management, discovery and expert evidence, with experienced judges and practitioners examining how they may best be employed. The program aims to honor the past through focusing on current and future best practice. Hosted by Supreme Court of New South Wales Sponsored by UNSW LAW CLE and ROSS PARSONS CENTRE, USYD LAW 1.00pm 1.10pm Welcome Michael LEGG, Associate Professor, Faculty of Law, UNSW Australia and Miiko KUMAR, University of Sydney Topic: After the Civil Procedure Act Speaker: Chief Justice TF BATHURST AC 1.40pm Speaker: 2.10pm 3.10pm 3.30pm 4.00pm Topic: Civil Procedure in England and Wales After the Jackson Reforms Emeritus Professor Adrian ZUCKERMAN, University of Oxford Topic: Panel Discovery Then and Now Chair: Associate Professor Michael LEGG, UNSW Australia 1. Justice Patricia BERGIN, Chief Judge in Equity 2. John EMMERIG, Partner, Jones Day 3. Richard HARRIS, Partner, Allens Afternoon Tea Topic: The Overriding Purpose Speaker: Justice John BASTEN Topic: Panel Expert Evidence Then and Now Chair: Miiko KUMAR, University of Sydney 1. Justice Peter GARLING RFD 2. Professor Gary EDMOND, UNSW Australia 3. Eugene ROMANIUK SC 5.00pm 6.00pm Topic: Panel Civil Procedure Reform Chair: Associate Professor Michael LEGG, UNSW Australia 1. Professor Peter CASHMAN, University of Sydney 2. Justice Ronald SACKVILLE AO 3. Carol WEBSTER SC Close

About the Speakers Chief Justice TF BATHURST AC Thomas Frederick Bathurst was appointed Chief Justice of New South Wales on 1 June 2011.

He was admitted as a barrister in 1977, specialising in corporate law and litigation and was appointed Queen s Counsel in 1987.

Prior to his appointment to the bench, the Chief Justice served as President of both the Australian Bar Association (2008-2010) and the New South Wales Bar Association (2009-2011), the Executive

Prior to that he was a Queens Counsel practising in Sydney with a mainly appellate practice. Justice Basten has degrees in law from the University of Adelaide and Oxford University.

Between 1986 and 1987 he was a part-time Commissioner of the Australian Law Reform Commission, having joint responsibility with Professor Cashman for the Commission s reference on Class Actions.

3 About the Speakers Chief Justice TF BATHURST AC Thomas Frederick Bathurst was appointed Chief Justice of New South Wales on 1 June Graduating with degrees in Arts and Law from the University of Sydney in 1971, he went on to practise as a solicitor in He was admitted as a barrister in 1977, specialising in corporate law and litigation and was appointed Queen s Counsel in His considerable experience in corporate law saw his appointment as a member of the Australian Government s Takeovers Panel ( ). Prior to his appointment to the bench, the Chief Justice served as President of both the Australian Bar Association ( ) and the New South Wales Bar Association ( ), the Executive Committee of which he has been a member since Justice John BASTEN Justice Basten was appointed to the NSW Court of Appeal on 2 May Prior to that he was a Queens Counsel practising in Sydney with a mainly appellate practice. Justice Basten has degrees in law from the University of Adelaide and Oxford University. He taught at the University of Chicago and the University of New South Wales, including civil procedure. He went to the Bar in 1982 and was appointed a QC in Between 1986 and 1987 he was a part-time Commissioner of the Australian Law Reform Commission, having joint responsibility with Professor Cashman for the Commission s reference on Class Actions. He wrote a paper for the Commonwealth Attorney-General proposing reforms on similar lines to those adopted in Part IVA of the Federal Court of Australia Act 1976 (Cth). Justice Patricia BERGIN, Chief Judge in Equity After graduating in law from Macquarie University, Justice Bergin practised as a solicitor with Stephen Jaques & Stephen in Sydney from 1981 until her call to the Bar on 10 February Her Honour was appointed Senior Counsel in On 1 March 1999 her Honour was appointed to the Supreme Court of New South Wales serving as a judge of the Equity Division. From 2004, her Honour was the List Judge, in charge of the Commercial List and the Technology and Construction List administering and controlling the busiest commercial court in Australia. In that role her Honour was involved in international exchanges of commercial judges in Sydney, Hong Kong, Singapore and Abu Dhabi. On 6 March 2009 her Honour was appointed Chief Judge in Equity and in that role as an additional judge of the Court of Appeal. From 2005 to 2014 Justice Bergin was the Chairperson of the ADR Steering Committee of the Supreme Court of New South Wales. This Committee is an advisory committee to the Chief Justice in relation to all forms of alternative or additional mechanisms of dispute resolution. In her role as Chairperson of the Committee Justice Bergin has attended Mediation Conferences in Hong Kong (2007 and 2012); Beijing (2011) and Rome (2012). Justice Peter GARLING RFD The Honourable Justice Peter Garling was born in 1952 in Malaya. He was educated at St Ignatius College, Riverview. He was awarded the degrees of Bachelor of Arts (1974) and Bachelor of Laws (1977) by the University of Sydney. His admission as a barrister was in NSW on 9 February He specialised in the areas of professional negligence and product liability law, public authority liability, insurance law and administrative law. He has appeared extensively in Royal Commissions and Public Inquiries. From 1989 to 1991, he held an appointment as an Acting Judge of the District Court of NSW. In 2008, he was appointed by the Government of New South Wales to conduct the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals. On 7 June 2010, His Honour was sworn in as a judge of the Supreme Court of New South Wales. He sits in the Common Law Division. His Honour is a member of the Executive Committee of the Judicial Conference of Australia. He is a member of the Education Committee of the Supreme Court of NSW. Justice Ronald Sackville AO Ronald Sackville was a Judge of the Federal Court of Australia from 1994 until his retirement from the Court in Mr Sackville is at present an acting Judge of Appeal of the Supreme Court of New South Wales and a Visiting Professorial Fellow at the Faculty of Law, University of New South Wales. Ronald Sackville is a graduate of the University of Melbourne and Yale University. He was Professor of Law ( ) and Dean of the Faculty of Law ( ) at the University of New South Wales. He has chaired a number of Commissions established by statute or by the

Commonwealth or State Governments, including the New South Wales Law Reform Commission (1981-1984) and the Access to Justice Advisory Committee (1993-1994).

Professor Peter Cashman, Faculty of Law, University of Sydney Dr Peter Cashman is a barrister and Professor of Law (Social Justice) at the University of Sydney.

Reform Commission; founding Director of the Public Interest Advocacy Centre; founder and senior partner of the firm Cashman & Partners which merged with the Melbourne firm Maurice Blackburn & Co to

of the Australian Plaintiff Lawyers Association (now the Australian Lawyers Alliance).

4 Commonwealth or State Governments, including the New South Wales Law Reform Commission ( ) and the Access to Justice Advisory Committee ( ). Mr Sackville practised as a barrister in Sydney from 1985 until He was appointed Queen s Counsel in Mr Sackville was made an Officer in the Order of Australia in Professor Peter Cashman, Faculty of Law, University of Sydney Dr Peter Cashman is a barrister and Professor of Law (Social Justice) at the University of Sydney. He was formerly: Commissioner in charge of the civil justice review with the Victorian Law Reform Commission; Commissioner jointly in charge of the reference on class actions with the Australian Law Reform Commission; founding Director of the Public Interest Advocacy Centre; founder and senior partner of the firm Cashman & Partners which merged with the Melbourne firm Maurice Blackburn & Co to form the national firm Maurice Blackburn Cashman (now Maurice Blackburn Pty Ltd); Governor of the American Trial Lawyers Association (now the American Association for Justice) and National President of the Australian Plaintiff Lawyers Association (now the Australian Lawyers Alliance). John EMMERIG, Partner, Jones Day John Emmerig has more than 25 years experience in representing major corporations (across a range of industries), financial institutions, and government in high stakes and strategic litigation. John is particularly noted for his expertise in: (1) class action defence, (2) bet the company level commercial disputes, and (3) matters involving government and regulators (including litigation, investigations, and commissions of inquiry). John co-chairs the Class Actions Committee of the Law Council of Australia and is co-author of the Class Actions section of the Federal Court Practice Manual. Professor Gary EDMOND, Faculty of Law, UNSW Australia Professor Gary Edmond is an Australian Research Council Future Fellow and Director, Program on Expertise, Evidence and Law at the Network for Interdisciplinary Studies of Law, UNSW. He holds a PhD from Cambridge University. He is a member of the Australian and New Zealand Forensic Science Society, the Australasian Association for the History, Philosophy and Social Studies of Science, the Society for the Social Study of Science (US) and sits on the Council of the Australian Academy of Forensic Sciences. Gary is co-author of Australian Evidence (5th ed, LexisNexis 2010). Richard HARRIS, Partner, Allens Richard specialises in significant commercial litigation, regulatory investigations, insolvency and corporate restructuring. Richard has been involved in a wide range of substantial complex commercial litigation in most Australian superior jurisdictions including the High Court. Issues raised in those disputes include class actions, cartel conduct, mergers, resources, confidential information, securities, capital raisings, tax, contracts, financial services, directors' duties, insolvency and restructuring. Richard is a qualified mediator and an associate member of the Insolvency Practitioners Association of Australia. He is a co-author of Directors Duties During Insolvency and frequently writes and presents on issues relating to commercial disputes, regulatory investigations, insolvency and restructuring. Miiko KUMAR, Faculty of Law, University of Sydney Miiko Kumar is a Barrister and a Senior Lecturer in the Faculty of Law at the University of Sydney. Miiko teaches both compulsory and elective courses in Evidence and Procedure. Miiko was admitted as a solicitor in 1996 and called to the Bar in Miiko is co-author of Principles of Civil Procedures in New South Wales and Uniform Evidence Law both published by Thomson Reuters. As a solicitor, she worked at the Office of the Director of Public Prosecutions (NSW) and Crown Solicitor s Office. As a barrister, some of the significant cases that she has appeared in are Bashford v Information Australia (2004) 218 CLR 366, Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, Cremona v RTA (2001) 35 MVR 19, Village Building Co Ltd v Canberra International Airport Pty (2004) 210 ALR 114 and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

Eugene ROMANIUK SC Jack Shand Chambers Mr Romaniuk graduated from ANU in 1992 and commenced practice at the NSW Bar in 1995.

He also maintains an extensive common law practice.

Before commencing at the NSW Bar he was employed as a Legal Research Officer at the New South Wales Court of Appeal in 1993 and 1994.

5 Eugene ROMANIUK SC Jack Shand Chambers Mr Romaniuk graduated from ANU in 1992 and commenced practice at the NSW Bar in He was appointed Senior Counsel in 2013 and his practice includes appeals, administrative law, insurance, commercial disputes and liability of professionals and service providers. He also maintains an extensive common law practice. He is a current member of a number of NSW Bar Association Committees and a current member of the Supreme Court of New South Wales Common Law Division Civil User Group. Before commencing at the NSW Bar he was employed as a Legal Research Officer at the New South Wales Court of Appeal in 1993 and Michael LEGG, Associate Professor, Faculty of Law, UNSW Australia Associate Professor Michael Legg specialises in civil procedure, class actions, regulatory and commercial litigation. He is the author of Case Management and Complex Civil Litigation (Federation Press, 2011) and co-author of Principles of Civil Procedure in New South Wales (Thomson Reuters, 2012) and Annotated Class Actions Legislation (LexisNexis, 2014). His research has been cited by a number of Australian courts and law reform commissions. Michael is a member of the Law Council of Australia's Class Actions Committee and a Board Member of the National Pro Bono Resource Centre. Michael is admitted as a solicitor before the Supreme Court of New South Wales and as an attorney in New York. Carol Webster SC Tenth Floor St James Hall Chambers Carol Webster is a senior counsel practising from Tenth Floor St James Hall Chambers. She is a graduate of the University of Sydney, BEc, LLB (Hons), LLM. She was admitted as a solicitor in 1989, and worked at Freehill Hollingdale & Page and then the Commonwealth Director of Public Prosecutions; came to the Bar in 1997 and was appointed Senior Counsel in Her principal areas of practice are administrative law, disciplinary proceedings, equity, property law and wills and probate law. Carol is the barrister member of the Uniform Rules Committee appointed by the Bar Council and the Bar s member on the Supreme Court Rules Committee. She is involved with the Bar Association s Education Committee and the Bar Practice Course. Carol is one of the General Editors of the Thomson subscription service NSW Civil Practice. Emeritus Professor Adrian ZUCKERMAN, University of Oxford Emeritus Professor Zuckerman is a leading expert in UK procedure and evidence and in comparative civil procedure. Emeritus Professor Zuckerman is the author of Justice in Crisis: Comparative Perspectives of Civil Procedure (1999) and Zuckerman on Civil Procedure: Principles of Practice (3rd edition 2013). He is co-author with Paul Roberts of Criminal Evidence (3rd edition 2013), and co-editor with Ross Cranston of Reform of Civil Procedure: Essays on Access to Justice (1996). The most recent edition of Zuckerman on Civil Procedure was described by Lord Justice Jackson as a masterly work. Previous editions have been extensively cited in the courts and law reform publications. Professor Zuckerman was until recently the editor of the Civil Justice Quarterly and played significant roles in both the Lord Woolf and Lord Jackson reviews of the UK civil justice system. Emeritus Professor Zuckerman has been an active participant in the study and reform of civil litigation and the administration of justice since the 1970s.

6 Registration Form / Tax Invoice CRICOS Provider Code 00098G ABN: Ten Years of the Civil Procedure Act 2005 (NSW) A decade of Insights and A guide to future Litigation Register on-line or by completing this registration form. To Register on line go to and select this event. I would like to attend Title Mr/Mrs/Miss/Ms: First Name: Last Name: Firm/Organisation: Cost (includes GST) $275 Payment Options (Please tick) Payment by cheque payable to CLE, UNSW, or Payment by credit card Mastercard Visa Occupation: We do not accept American Express Address: Postcode: Telephone: Fax: Card number: / / / Expiry date: / Cardholder s name: Signature: Please return this registration form with your payment to: CLE, Tel: (02) or (02) Faculty of Law, UNSW, Fax: (02) or (02) Sydney NSW cle@unsw.edu.au Website: Programme Variation: The Director of CLE retains the right to vary the programme to deal with unforeseen circumstances. This includes cancelling or re-scheduling a programme and changing speakers or content if occasion obliges us to do so. Cancellation Policy: Cancellations will be accepted up to two weeks prior to the commencement of the course. Withdrawal after this time and before the commencement of the course will result in a cancellation charge of $100. Cancellations after the commencement of the course will not be eligible for a refund. Privacy note: The information you have provided on this form will only be used by UNSW to distribute information about University courses and activities to you. You can now REGISTER ONLINE go to Office Use Only: Rec d Inv No. Auth No.

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