Breakfast served from 7:30 (Spring Bay Restaurant)
Sunday 12 November
9:00-9:30 Check out
10:00-10:10 Welcome to Day Two
10:10-11:10 Session 8
11:10-11:25 Morning Tea
11:25-12:10 Session 9.1 and 9.2
12:20-1:20 Session 10
1:20-1:30 Convention wrap up Yellow Jersey announced Lucky door prize draw
1:30 Convention formally concludes
Breakfast served from 7:30 to 10 (Spring Bay Rest.) *Eatery options provided
Session materials are provided to delegates where they have been supplied to the Society. And they are distributed in accordance with instructions from the session presenters.
The Sessions
The Honourable Justice Helen Wood
Justice Wood was appointed as a judge of the Supreme Court of Tasmania in 2009 Her Honour is the senior puisne judge Her Honour graduated from the University of Tasmania with a Bachelor of Arts and a Bachelor of Laws in 1985. She practised exclusively in the criminal jurisdiction as Crown Counsel with the Office of the Director of Public Prosecutions for seven years. She later practised in civil litigation in private practice In 1994 she was the first woman appointed to the role of magistrate in Tasmania and served as a magistrate until 2009.
Her Honour has a longstanding interest in human rights and access to justice In conjunction with her role as magistrate, she served as Chairperson of the Sex Discrimination Tribunal (1996-1999) and the Anti-Discrimination Tribunal (1999-2009) She is a presently a member of the Judicial Council on Cultural Diversity and of the board of the Tasmania Law Reform Institute.
The Honourable Justice Shaun McElwaine
Justice McElwaine graduated from the University of NSW in 1983 and was admitted as a solicitor in the Supreme Court of NSW in 1984. He commenced his career as a Legal Officer at the Office of the Commonwealth Director of Public Prosecutions
Justice McElwaine joined private practice in Launceston in 1988 and commenced his own firm in 1996 He was appointed Senior Counsel in 2013. Justice McElwaine commenced his appointment as a judge of the Federal Court of Australia in January 2022
Session 1
Plenary
9:00-10:00am (60 mins)
How to Increase Client Prospects of Success at Trial and on Appeal
This session provides attendees with techniques and strategies to enhance their clients' success at trial and on appeal It includes discussion of strategic thinking before commencing a proceeding; framing the issues, marshalling evidence and presenting succinctly and persuasively And provides insight into what the decision-maker is looking for.
Session Outline
Strategic thinking before commencing a proceeding. Framing the issues attractively Marshalling evidence efficiently. Presenting the case succinctly Being persuasive.
Key Takeaways
Learn what a decision-maker looks for.
Learn what is likely to attract the interest of the decision-maker
Learn what is likely to irritate the decision-maker.
Understand the importance of a laser-like focus on the overarching purpose of civil litigation.
Presented by:
The Hon. Justice Helen Wood, Supreme Court of Tasmania and The Hon. Justice Shaun McElwaine, Federal Court of Australia
Chair:
Luke Taylor, Crown Counsel, Office of the Solicitor-General (Litigation) Department of Justice; Chair, Litigation Committee, Law Society of Tasmania CPD
Ian Robertson SC
Mr Robertson SC a generalist, trial and appellate Commercial barrister with a special interest in intellectual property (litigious and non-litigious). He practices in all Courts in this State and in the federal courts of Australia, including the Family Court and the High Court of Australia. Ian was admitted to practice in 1986 and appointed silk, or Senior Counsel, in 2008, having previously practiced as a solicitor for eight years Practising from Jeffcott Chambers in Adelaide, Australia, Ian focuses primarily on commercial litigation
Ian was President of the South Australian Bar Association (SABA) between 2016 and 2018. He has also acted as the Chair of the Australian Bar Association’s Advocacy Training Council, and a director of the Australian Advocacy Institute Ian is a regular teacher of advocacy for the SABA, ABA and the Australian Advocacy Institute, offering coaching both in Australia and overseas.
He is also an experienced advocacy coach both in Australia (SABA, ABA, and AAI) and overseas.
Session 2.1
Day One
Trial Advocacy Advanced Series
10:10-11:10am
(60 mins)
Oral vs Affidavit Evidence: Advanced Strategies in Evidence Preparation and Disclosure
This session includes a deep dive into the area of oral vs affidavit evidence, adducing admissible documentary evidence, disclosure obligations, and options for addressing common areas of dispute
Discussion includes:
It's the witnesses evidence (not yours). What is the witnesses' evidence?
Experts
When to choose oral testimony over affidavits and vise versa.
Case studies highlighting the impact of this choice in litigation outcomes
Strategies for adducing admissible documentary evidence, and challenging or defending the admissibility of documentary evidence
How to handle contentious issue relating to a challenge.
Presented by: Ian Robertson SC, Barrister, Jeffcott Chambers, SA
Chair: Andrew Buckley, Director, Tierney Law; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL Slides provided at the session
Kate Cuthbertson SC
Ms Cuthbertson SC was admitted to practice in 1999 and signed the bar roll in February 2010 Her areas of practice include criminal law (State and Commonwealth); professional conduct; general litigation; administrative law; and coronial matters Kate is also a member of the Anti-Discrimination Tribunal, the Mental Health Tribunal, the Sentencing Advisory Council and a deputy chairperson of the Tasmanian Racing Appeals Board
Kate also holds a number of positions on government and not-forprofit boards and is a graduate of the AICD’s Company Director’s Course Kate recently completed the ABA’s Advanced Trial Advocacy Intensive and teaches at the Centre for Legal Studies.
Magistrate Duncan Fairley
Magistrate Fairley was sworn in as magistrate and commenced sitting in early 2016 Prior to this appointment, Magistrate Fairley was the principal of a prominent North West legal practice.
Magistrate Fairley was previously President of the Tasmanian Bar Association from 2008 and was the inaugural chair of the Litigation Committee of the Law Society of Tasmania
Session 2.2
Day One
Trial Advocacy 101 Series
10:10-11:10am (60 mins)
Getting to Court: Pre-Trial Preparation
This is a practical on-the-basics skills session including preparation and practical issues for instructing solicitors going to trial; preparing your case for the Magistrates Court; how to progress a matter to hearing; compulsory conferences These are transferrable skills across the different areas of law/legal practice.
The session includes discussion of the following:
A practical interactive discussion on skills such as cross-examination and advocacy. Trial preparation and practical issues for instructing solicitors going to trial Preparing your case for the Magistrates Court.
Presented by:
Kate Cuthbertson SC, Barrister, Malthouse Chambers and Magistrate Duncan Fairley, Magistrates Court of Tasmania
Chair:
Aysha Williams, Senior Associate, McLean McKenzie & Topfer; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
The Honourable Justice Helen Wood
Justice Wood was appointed as a judge of the Supreme Court of Tasmania in 2009 Her Honour is the senior puisne judge Her Honour graduated from the University of Tasmania with a Bachelor of Arts and a Bachelor of Laws in 1985. She practised exclusively in the criminal jurisdiction as Crown Counsel with the Office of the Director of Public Prosecutions for seven years. She later practised in civil litigation in private practice In 1994 she was the first woman appointed to the role of magistrate in Tasmania and served as a magistrate until 2009.
Her Honour has a longstanding interest in human rights and access to justice In conjunction with her role as magistrate, she served as Chairperson of the Sex Discrimination Tribunal (1996-1999) and the Anti-Discrimination Tribunal (1999-2009) She is a presently a member of the Judicial Council on Cultural Diversity and of the board of the Tasmania Law Reform Institute.
Session 3.1
Trial Advocacy Advanced Series
11:25-12:25pm (60 mins)
Vulnerable Litigants and Witnesses
Practitioners will receive an insight from the bench on effectively representing and advocating for vulnerable litigants and witnesses in a courtroom setting. This includes a practitioner's responsibilities when handling cross-examination and other procedural matters
In this session consideration will be given to: How to guide vulnerable litigants and witnesses through complex legal proceedings and practical guide to available measures and a tool kit of the orders you can ask for in cases involving vulnerable witnesses, including adult witnesses with communication needs and children, and barriers such as cultural and linguistic diversity.
Key Takeaways
Procedures using correctly promote good advocacy
Fairness is your guide, and mine
Thinking outside the square
What to do if you don’t know what to do
Presented by:
The Hon. Justice Helen Wood, Supreme Court of Tasmania
Chair: Gabrielle McDonald, Associate, LHD Lawyers; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS
Resources provided during the session
Magistrate Duncan Fairley
Magistrate Fairley was sworn in as magistrate and commenced sitting in early 2016 Prior to this appointment, Magistrate Fairley was the principal of a prominent North West legal practice.
Magistrate Fairley was previously President of the Tasmanian Bar Association from 2008 and was the inaugural chair of the Litigation Committee of the Law Society of Tasmania
Session 3.2
Day One
Trial Advocacy 101 Series
11:25-12:25pm (60 mins)
Civil Litigation in the Magistrates Court
With a focus on bring a civil matter to the Magistrates Court, this interactive workshopstyle session includes discussion on:
Preparing your case.
How to prosecute and defend your claim
Conducting civil hearings and applications. The interlocutory process
Evidence and tendering documents. Plenty more insights from the bench
Presented by:
Magistrate Duncan Fairley, Magistrates Court of Tasmania
Chair:
Kym Child, Associate, Wallace Wilkinson Webster; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
materials
Rebecca Treston KC
Ms Treston KC is Queensland’s only Market Leader, King’s Counsel, in estate litigation (Doyle’s Guide 2019 and 2020) She is also recognised as one of three pre-eminent Silks in estate litigation in Australia (Doyle’s Guide 2019) Her diverse practice means she is also ranked as “leading” and “recommended” QC by Doyle’s Guide in Insurance Litigation and as a Mediator. Rebecca graduated with a Bachelor of Laws (Honours) in 1989 She worked between 1989 and 1996 as a solicitor specialising in insurance litigation Rebecca was called to the Bar in February 1996 and was appointed Queen’s Counsel in 2013.
Between 2007 and 2010, and again in 2013, Rebecca held a position as a part time member of the Queensland Law Reform Commission She regularly acts as a mediator in estate, insurance and commercial disputes. In 2018, Rebecca became the first female President of the Bar Association of Queensland Rebecca is a member of Hemmant’s List.
Session 4
Plenary
12:35-1:35pm (60 mins)
Dead Ends in Evidence
This session provides an in-depth consideration of the nuances of evidence rules, specifically exploring exceptions to the hearsay rule concerning deceased persons in litigation The aim is to equip participants with the practical knowledge to apply in their practice.
Discussion will include:
Consideration of complex situations where the hearsay rule is rigorously applied
Exceptions pertaining to statements made by deceased persons.
A dissection of case law affecting the rules of evidence including where there are hearsay objections: a discussion
Litigation strategies in this context to apply in practice.
Presented by:
Rebecca Treston KC, Barrister, Queensland Bar
Chair:
Alex Kendall, Senior Associate, Phillips Taglieri; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
Materials TBA Day One
Christopher Shanahan SC
Mr Shanahan SC is an independent barrister who was appointed silk in 2004 He is a member of the WA Bar Association, of which he was Vice-President between 2005 and 2007. He is a Fellow of the Australian Academy of Law Chris’ practice includes administrative, civil and commercial matters, with an emphasis on appeals. Prior to taking silk in 2004 Chris’s practice included first instance crime, and he appeared in some 120 jury trials between 1996-2003. Chris continues to appear in criminal matters and is regularly briefed by the Commonwealth DPP and the Australian Federal Police.
Chris led the establishment of Murray Chambers in Perth in February 2017 and was Head of Chambers until March 2021.
Chris has an extensive background in legal education and is an experienced advocacy trainer He was a member of the Australian Bar Association’s Advocacy Training Council (2008-2017). He was Course Director of the ABA’s first Appellate Advocacy Course in Sydney in 2012 and a member of the faculty in that course in 2015. He is a member of the External Advisory Committee advising the Dean at Murdoch School of Law and is an Adjunct Clinical Professor at Curtin University.
Session 5.1
Trial Advocacy Advanced Series
2:20-3:05pm (45 mins)
Part I: Appellate Advocacy: Identifying and Establishing Error
In this session, which is part 1 of 2, Christopher Shanahan SC will:
Provide practical tips for preparing and arguing appeals effectively and successfully. Cover many aspects of the appeal process, with a particular focus on how to effectively engage with the court.
Provide an overview of the nature and type of appeals as well as the appeal process itself.
Provide guidance on preparation for appeals including tips for formulating grounds of appeal, writing effective written submissions, and how to craft a successful appellate argument.
Suggest resources for further developing your skills as an advocate There is a practical focus on the most effective ways to engage with the court, such as:
o how to prepare effectively for judicial questions
o how to engage with judicial questions in a way that advances your client’s position;
o how to handle silent or outspoken judges to your advantage
Presented by:
Christopher Shanahan SC, Barrister, Murray Chambers, WA
Chair:
Pierre Dordhain, Associate, LHD Lawyers; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
Slides provided after the session Day One
Kate Cuthbertson SC
Ms Cuthbertson SC was admitted to practice in 1999 and signed the bar roll in February 2010 Her areas of practice include criminal law (State and Commonwealth); professional conduct; general litigation; administrative law; and coronial matters Kate is also a member of the Anti-Discrimination Tribunal, the Mental Health Tribunal, the Sentencing Advisory Council and a deputy chairperson of the Tasmanian Racing Appeals Board
Kate also holds a number of positions on government and not-forprofit boards and is a graduate of the AICD’s Company Director’s Course Kate recently completed the ABA’s Advanced Trial Advocacy Intensive and teaches at the Centre for Legal Studies.
Session 5.2
Trial Advocacy 101 Series
2:20-3:05pm (45 mins)
Particulars in Pleading: A Preliminary Guide to Principle and Strategy
Session Outline
Particulars v material facts - what are they and what purpose do they serve?
What particulars are you required to provide?
How to make and respond to requests for particulars?
Court applications - how and when to make and how to respond
Key Takeaways
An understanding of:
What particulars are and when they are required.
How to approach making and responding to requests for further and better particulars
The relevant rules of court and key cases.
Strategic considerations
Presented
by:
Kate Cuthbertson SC, Barrister, Malthouse Chambers
Chair:
Gabrielle McDonald, Associate, LHD Lawyers; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
No materials
Christopher Shanahan SC
Mr Shanahan SC is an independent barrister who was appointed silk in 2004 He is a member of the WA Bar Association, of which he was Vice-President between 2005 and 2007. He is a Fellow of the Australian Academy of Law Chris’ practice includes administrative, civil and commercial matters, with an emphasis on appeals. Prior to taking silk in 2004 Chris’s practice included first instance crime, and he appeared in some 120 jury trials between 1996-2003. Chris continues to appear in criminal matters and is regularly briefed by the Commonwealth DPP and the Australian Federal Police.
Chris led the establishment of Murray Chambers in Perth in February 2017 and was Head of Chambers until March 2021.
Chris has an extensive background in legal education and is an experienced advocacy trainer He was a member of the Australian Bar Association’s Advocacy Training Council (2008-2017). He was Course Director of the ABA’s first Appellate Advocacy Course in Sydney in 2012 and a member of the faculty in that course in 2015. He is a member of the External Advisory Committee advising the Dean at Murdoch School of Law and is an Adjunct Clinical Professor at Curtin University.
Session 6.1
Trial Advocacy Advanced Series
3:15-4:00pm (45 mins)
Part II: Appellate Advocacy: Identifying and Establishing Error
In this session, Christopher Shanahan SC continues his discussion.
Provide practical tips for preparing and arguing appeals effectively and successfully. Cover many aspects of the appeal process, with a particular focus on how to effectively engage with the court.
Provide an overview of the nature and type of appeals as well as the appeal process itself.
Provide guidance on preparation for appeals including tips for formulating grounds of appeal, writing effective written submissions, and how to craft a successful appellate argument.
Suggest resources for further developing your skills as an advocate There is a practical focus on the most effective ways to engage with the court, such as:
o how to prepare effectively for judicial questions
o how to engage with judicial questions in a way that advances your client’s position;
o how to handle silent or outspoken judges to your advantage
Presented by: Christopher Shanahan SC, Barrister, Murray Chambers, WA
Chair: Pierre Dordhain, Associate, LHD Lawyers; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL
Slides provided after the session
Ian Robertson SC
Mr Robertson SC a generalist, trial and appellate Commercial barrister with a special interest in intellectual property (litigious and non-litigious). He practices in all Courts in this State and in the federal courts of Australia, including the Family Court and the High Court of Australia. Ian was admitted to practice in 1986 and appointed silk, or Senior Counsel, in 2008, having previously practiced as a solicitor for eight years Practising from Jeffcott Chambers in Adelaide, Australia, Ian focuses primarily on commercial litigation
Ian was President of the South Australian Bar Association (SABA) between 2016 and 2018. He has also acted as the Chair of the Australian Bar Association’s Advocacy Training Council, and a director of the Australian Advocacy Institute Ian is a regular teacher of advocacy for the SABA, ABA and the Australian Advocacy Institute, offering coaching both in Australia and overseas.
He is also an experienced advocacy coach both in Australia (SABA, ABA, and AAI) and overseas.
Session 6.2
Day One
Trial Advocacy 101 Series
3:15-4:00pm (45 mins)
Demystifying Legal Professional Privilege: Practical Insights for Beginners
This session is a practical and interactive consideration of the importance and relevance of legal professional privilege in legal practice
It covers:
An overview of the key elements and requirements for establishing privilege; A look at when privilege may be waived, or exceptions may apply; Strategies for preserving and protecting privilege in various scenarios; Best practice for managing privileged information in client interactions and litigation; A brief consideration of cases illustrating application and potential pitfalls
Presented by:
Ian Robertson SC, Barrister, Jeffcott Chambers, SA
Chair:
Victor Murray, Lawyer; Member, Litigation Committee, Law Society of Tasmania
CPD Guide: PS, SL Slides provided after the session
The Honourable Justice Shaun McElwaine
Justice McElwaine graduated from the University of NSW in 1983 and was admitted as a solicitor in the Supreme Court of NSW in 1984. He commenced his career as a Legal Officer at the Office of the Commonwealth Director of Public Prosecutions
Justice McElwaine joined private practice in Launceston in 1988 and commenced his own firm in 1996 He was appointed Senior Counsel in 2013. Justice McElwaine commenced his appointment as a judge of the Federal Court of Australia in January 2022
The Honourable Justice Roger Derrington
Justice Derrington called to the Bar in 1986. Having graduated first in his year in Law, His Honour was awarded the Sir Robert Menzies Scholarship in Law in 1987. At that time the Menzies’ Scholarship in Law had not previously been awarded to a student from Queensland. In the period from 1987 to 1989 he read for the degree of Bachelor of Civil Laws at Worcester College, Oxford. While at the Bar, his Honour was a co-convenor of the Commercial Law Sub-committee of the Queensland Bar Association, a member of the Professional Conduct Committee of the Bar Association and a member of the Commercial Litigation Accreditation Committee of the Queensland Law Society He has been an Adjunct Professor at the University of Queensland since 2005 where he has lectured in various courses including commercial law, insurance law, trusts, pleadings and legal practice, leadership and the law, and resources law.
His Honour was sworn in as a Judge of the Federal Court of Australia in 2017
Session 7.1
Day One
Plenary
4:15-5:15pm (60 mins)
The Federal Court: What We Do, How We Do It and Tips for Practitioner Involvement
+ Litigating in the Federal Court
In this session practitioners will be appraised of the breadth of jurisdiction of the Federal Court and why informed advice to clients should be considered before commencing proceedings in this Court. This will include how and to what objective is case management conducted, simple steps to commence a proceeding in the Federal Court, the Court’s expectations of the parties and their lawyers.
This session will include discussion of:
The National Court Framework and national practice areas. The individual docket system
How and to what objective is case management conducted. Simple steps to commence a proceeding
The Court’s expectations of the parties and their lawyers.
Innovative case management techniques to ensure a matter is dealt with efficiently and in a timely manner.
Why pleadings, pleading disputes, discovery and particulars disputes rarely arise.
Concise or narrative statements as the alternative to pleadings
References to registrars or to other appropriate persons to determine discrete issues.
The conduct of electronic trials
Timely delivery of judgments.
Presented by:
The Hon. Shaun McElwaine, Federal Court of Australia and The Hon. Roger Derrington, Federal Court of Australia
Chair: Andrew Buckley, Director, Tierney Law; Member, Litigation Committee, Law Society of Tasmania
Kate Cuthbertson SC
Ms Cuthbertson SC was admitted to practice in 1999 and signed the bar roll in February 2010 Her areas of practice include criminal law (State and Commonwealth); professional conduct; general litigation; administrative law; and coronial matters Kate is also a member of the Anti-Discrimination Tribunal, the Mental Health Tribunal, the Sentencing Advisory Council and a deputy chairperson of the Tasmanian Racing Appeals Board
Kate also holds a number of positions on government and not-forprofit boards and is a graduate of the AICD’s Company Director’s Course Kate recently completed the ABA’s Advanced Trial Advocacy Intensive and teaches at the Centre for Legal Studies.
Magistrate Duncan Fairley
Magistrate Fairley was sworn in as magistrate and commenced sitting in early 2016 Prior to this appointment, Magistrate Fairley was the principal of a prominent North West legal practice.
Magistrate Fairley was previously President of the Tasmanian Bar Association from 2008 and was the inaugural chair of the Litigation Committee of the Law Society of Tasmania
Session 7.2
Trial Advocacy 101 Series
4:15-5:15pm (60 mins)
Bespoke Session 1
Breakout individualised advocacy 101 training with either Kate Cuthbertson SC or Magistrate Duncan Fairley
Early career lawyers have the opportunity to work with these very experienced legal professionals who know their way around a court room Participants can take advantage of this informal setting to ask questions, brainstorm scenarios and pick the brains of these facilitators on all matters pertaining to trial preparation, and to manage court room proceedings.
Facilitated by:
Kate Cuthbertson SC, Barrister, Malthouse Chambers or Magistrate Duncan Fairley, Magistrates Court of Tasmania
CPD Guide: PS, SL No materials Day One
Dr Allison Stanfield
Dr Stanfield has 30 years' experience as a lawyer and in business. In her private legal practice, with an international clientele, Allison’s expertise includes advising on cyber security compliance, privacy and commercial contracts Having obtained a PhD in electronic evidence, Allison also maintains a keen academic interest in all things digital. Allison's key clients include mature software companies, start-ups and businesses wishing to increase their cyber resilience and privacy law compliance.
In addition to her commercial practice, Allison speaks regularly on the topics of digital evidence, cyber, privacy and AI Allison speaks regularly on the topic of electronic evidence and is a co-author of a chapter in the Fifth Edition of ‘Electronic Evidence and Electronic Signatures’, edited by Stephen Mason and Daniel Seng, published in 2021 and is also co-editor of Digital Evidence and Electronic Signature Law Review
Session 8
Day Two
Plenary
10:10-11:10am (60 mins)
Digital Evidence: Social Media, Digital Assets and the Metaverse
Session Outline
Evidence placed before a court can by physical, documentary or digital. However, as digital assets and interactions continue to evolve, how will this impact the ways lawyers admit and prove evidence? The scope of digital evidence is ever increasing, and the courts have had opportunities to consider various forms of digital evidence in both civil and criminal proceedings – particularly social media evidence. But as new kinds of wealth emerge in the metaverse in the form of digital assets, there will inevitably be disputes over ownership, thefts, and breaches of intellectual property. Will this evolving technological landscape change how lawyers admit and prove evidence? Also, how is the advent of AI impacting all of this? This session explores this topic in detail, as well as covering:
Different types of digital evidence and how these are sourced
How the courts have dealt with digital evidence, crypto assets, smart contracts and the use of AI in civil proceedings
How the courts deal with the admissibility and authenticity of digital evidence in criminal trials.
Takeaways
Understand contemporary issues with digital evidence
Obtain an overview of crypto assets, social media and AI tools such as ChatGPT (and whether lawyers should use it).
Overview of what the courts say about new technology
Presented by:
Dr. Allison Stanfield, Solicitor Director, Lantern Legal, NSW
Chair:
Luke Taylor, Crown Counsel, Office of the Solicitor-General (Litigation) Department of Justice; Chair, Litigation Committee, Law Society of Tasmania
CPD Guide: PM
Slides provided before the session
Ian Robertson SC
Mr Robertson SC a generalist, trial and appellate Commercial barrister with a special interest in intellectual property (litigious and non-litigious). He practices in all Courts in this State and in the federal courts of Australia, including the Family Court and the High Court of Australia. Ian was admitted to practice in 1986 and appointed silk, or Senior Counsel, in 2008, having previously practiced as a solicitor for eight years Practising from Jeffcott Chambers in Adelaide, Australia, Ian focuses primarily on commercial litigation
Ian was President of the South Australian Bar Association (SABA) between 2016 and 2018. He has also acted as the Chair of the Australian Bar Association’s Advocacy Training Council, and a director of the Australian Advocacy Institute Ian is a regular teacher of advocacy for the SABA, ABA and the Australian Advocacy Institute, offering coaching both in Australia and overseas.
He is also an experienced advocacy coach both in Australia (SABA, ABA, and AAI) and overseas.
Session 9.1
Trial Advocacy Advanced Series
11:25-12:10pm (45 mins)
The Harman Rule: Know Your Obligations and Staying Out of Harm's Way
Session Outline
Being conscious of the proper uses of information obtained is crucial as any misuse could constitute a breach of the "implied undertaking". This session will talk about the risks of misusing information in legal proceedings
The undertaking
The purpose of the implied undertaking
Basic features.
Applicable documents.
How to determine if the implied undertaking applies Examples of breach.
Can you be released from the implied undertaking to the Court?
Important reminder for litigating parties.
Presented by:
Ian Robertson SC, Barrister, Jeffcott Chambers, SA
Chair:
Victor Murray, Lawyer; Member, Litigation Committee, Law Society
of Tasmania
Kate Cuthbertson SC
Ms Cuthbertson SC was admitted to practice in 1999 and signed the bar roll in February 2010 Her areas of practice include criminal law (State and Commonwealth); professional conduct; general litigation; administrative law; and coronial matters Kate is also a member of the Anti-Discrimination Tribunal, the Mental Health Tribunal, the Sentencing Advisory Council and a deputy chairperson of the Tasmanian Racing Appeals Board
Kate also holds a number of positions on government and not-forprofit boards and is a graduate of the AICD’s Company Director’s Course Kate recently completed the ABA’s Advanced Trial Advocacy Intensive and teaches at the Centre for Legal Studies.
Magistrate Duncan Fairley
Magistrate Fairley was sworn in as magistrate and commenced sitting in early 2016 Prior to this appointment, Magistrate Fairley was the principal of a prominent North West legal practice.
Magistrate Fairley was previously President of the Tasmanian Bar Association from 2008 and was the inaugural chair of the Litigation Committee of the Law Society of Tasmania
Session 9.2
Day Two
Trial Advocacy 101 Series
11:25-12:10pm (45 mins)
Bespoke Session 2
Breakout individualised advocacy 101 training with either Kate Cuthbertson SC or Magistrate Duncan Fairley
Early career lawyers have the opportunity to work with these very experienced legal professionals who know their way around a court room Participants can take advantage of this informal setting to ask questions, brainstorm scenarios and pick the brains of these facilitators on all matters pertaining to trial preparation, and to manage court room proceedings.
Facilitated by:
Kate Cuthbertson SC, Barrister, Malthouse Chambers or Magistrate Duncan Fairley, Magistrates Court of Tasmania
CPD Guide: PS, SL No materials
Christopher Shanahan SC
Mr Shanahan SC is an independent barrister who was appointed silk in 2004 He is a member of the WA Bar Association, of which he was Vice-President between 2005 and 2007. He is a Fellow of the Australian Academy of Law Chris’ practice includes administrative, civil and commercial matters, with an emphasis on appeals. Prior to taking silk in 2004 Chris’s practice included first instance crime, and he appeared in some 120 jury trials between 1996-2003. Chris continues to appear in criminal matters and is regularly briefed by the Commonwealth DPP and the Australian Federal Police.
Chris led the establishment of Murray Chambers in Perth in February 2017 and was Head of Chambers until March 2021.
Chris has an extensive background in legal education and is an experienced advocacy trainer He was a member of the Australian Bar Association’s Advocacy Training Council (2008-2017). He was Course Director of the ABA’s first Appellate Advocacy Course in Sydney in 2012 and a member of the faculty in that course in 2015. He is a member of the External Advisory Committee advising the Dean at Murdoch School of Law and is an Adjunct Clinical Professor at Curtin University.
Session 10
Day Two
Plenary
12:20-1:20pm (60 mins)
Communications Between Bench and Bar: Perception Can Be Everything
It is an essential component of the rule of law for the judiciary to be demonstrably free of partisan interests, or the perception of such influence Private communication between judges and lawyers is one area in which perception can be everything. This session explores the ethical limits of private communications between judges and lawyers during the course of proceedings, as well as in other contexts, and discusses a number of topics, including:
The traditional rules and conventions governing communications between judges and lawyers;
The gaps between these traditional rules and conventions and the rule against apprehended bias;
The case of Charisteas v Charisteas, which demonstrates how contact between a judge and lawyer may not breach the relevant rules but may still create perceptions of bias;
What steps could be taken to clarify and strengthen the effectiveness of the current rules and safeguards, including recommendations made by the ALRC.
Facilitated by:
Christopher Shanahan SC, Barrister, Murray Chambers, WA
Chair: Luke Taylor, Crown Counsel, Office of the Solicitor-General (Litigation) Department of Justice; Chair, Litigation Committee, Law Society of Tasmania
CPD Guide: E, PS
Paper provided before the session; Slides provided after the session
The focus on perception rather than actual bias means that even where a lawyer has not breached any professional conduct rules communication with a judge still has the potential to generate an application for recusal of the judge on the grounds of a perception of bias.
Is that a matter that legal practitioners should now be required to consider when communicating with judges?
The rule in Home Office v Harman has become entrenched in lawyers’ collective psyche. The reasons for this are perhaps obvious; the consequences for a practitioner breaching the rule are potentially career ending; the probability that a practitioner pleading ignorance of the rule is zero, and ‘word will get around’.
In that context, it is important for all practitioners (in-house, solicitors and barristers) to know what the rule says, to know when it applies and how and to know what they might do (or be compelled to do) to be relieved of its consequences before they are relieved of their Practising Certificates.
Thank you for choosing the Litigation Convention 2023 Your feedback is appreciated.
