IN THIS ISSUE

Welcome from the Section Chair – R eplacement of Approved Form 21 & Practice Chris Cunningham Note CM 17

Section News Administrative Appeals Tribunal News The work of the Section Video surveillance Practice Direction

High Court of Australia News Implied Undertaking Practice Direction

High Court publishing audio-visual recordings of Revised Guide to Worker’s Compensation Full Court hearings Jurisdiction High Court Amendment (Vexatious Proceedings and Other Matters) Rules 2013 Article: Class actions – settlement overturned on appeal for first time Federal Court of Australia News Full Court and Appellate sitting dates – 2014 Case Notes: Client legal privilege

Guide to Individual Docket System Expense Reduction Analysts Group Pty Ltd v New filing eef to register a New Zealand Armstrong Strategic Management and Marketing judgment Pty Limited

Amendment rules Aquila Coal Pty Ltd v Bowen Central Coal Pty Practice Note CM 7 – Expert witnesses in Ltd proceedings in the FCA (4 June 2013) III Practice Note CM 22 – Video link hearing Article: Funding of the Australian federal court arrangements (5 June 2013) system: a looming crisis? Practice Note ADM 1 – Admiralty and maritime work in the Federal Court of Australia The Section Executive Committee and Committee Chairs Replacement of Approved Forms and Practice Note CM 17

In the 2012–13 Law Council of Australia review of its Standing Committees and Working Groups it was recommended and subsequently the Standing Committee on Alternative Dispute Resolution and the Litigation Funding Working Group being incorporated into the Section. I take this opportunity on behalf of the Section Executive to welcome members of those Committees to the Section. We look forward to providing the benefit of your expertise to our membership and the Law Council generally, and to working together.

2013 was a busy year, with a number of changes and judicial appointments. It would be too lengthy to list them all, but among them were: Welcome to the latest edition of our Federal Litigation • the appointment of Senator the and Dispute Resolution Section Newsletter, Hon. QC as the new to keep you up-to-date with relevant Commonwealth Attorney General, matters, and which we have re-enlivened. succeeding the Hon. Mark Dreyfus QC;

This issue carries our updated logo which • the Federal Magistrates Court being includes the tagline Federal Litigation renamed the ‘Federal Circuit Court and Dispute Resolution Section. The Law of Australia’ and the title of Federal Council’s Directors approved Section’s Magistrate being amended to ‘Judge’. amended name in the suite of minor There have also been consequential amendments of the Section’s by-laws that amendments, such as the Federal had been agreed by Section members Court (Bankruptcy) Amendment at the November 2013 Annual General (Federal Circuit Court Name Changes)

CHAPTER Meeting. The Section’s new name better Rules 2013 (which commenced on 19 reflects the Section’s commitment to September 2013); alternative means of dispute resolution • Justice Patrick Keane’s appointment as (ADR), consistent with its jurisdiction and the 50th appointee to the High Court SUMMER the recent inclusion of the Law Council’s since Federation (replacing the Hon. Alternative Dispute Resolution Committee Justice John AC who 20I3–I4 as a Committee of the Section.

chaper III - summer 2013–14 1 Welcome CONTINUED.... SECTION NEWS

retired after 10 years of service to the • preparing draft material for the Court); new chapters for the Law Council THE WORK OF of Australia’s Federal Court Case • the appointment of Justin Gleeson SC THE SECTION Management Handbook on: as Australia’s 10th Solicitor-General of the Commonwealth; – alternative dispute resolution; The Section was established to provide a • the appointment of seven new Federal – class actions; and network for lawyers who have litigation Court Judges: and dispute resolution practices in Federal – industrial law. Courts and Tribunals within the areas of – the Hon. Tony Pagone, Melbourne ; • the Commonwealth Compensation interest covered by the Section. – the Hon. Jennifer Davies, and Employment Law Committee Examples of some of the work undertaken Melbourne; hosting two seminars on Hot Topics in by the Section this year have been noted in Commonwealth Compensation – in – the Hon. Debra Sue Mortimer, the Chair’s welcome message. May in Melbourne and in December in Melbourne; Sydney; The Section: – the Hon. Darryl Cameron Rangiah, • the Industrial Law Committee ; • has a strong focus on liaison presenting a seminar in Sydney in with federal courts and tribunals, – the Hon. Richard Conway White, October 2013 on unfair dismissal particularly in relation to effective case Adelaide; laws and discussing the new Unfair management; Dismissal Benchbook and Unfair – the Hon. Michael Andrew Wigney, Dismissal Proceedings Practice; • responds to substantive law issues Sydney; and within the federal litigation and dispute • encouraging member participation in – the Hon. Melissa Anne Perry, resolution sphere, particularly in the the Attorney-General’s Department’s Sydney. areas of administrative law, industrial, survey about the Civil Dispute employment and labour law, and • the appointment of five Judges to the Resolution Act 2011 (Cth); and Commonwealth compensation; Federal Circuit Court of Australia: • establishing a panel of barristers • has a strong interest in representative – Judge Alexandra Harland, Darwin; to provide case notes for the Law actions and client legal privilege; Council’s CLP Watch website during – Judge Judith Small, Melbourne; 2014. • conducts seminars, conferences and – Judge Suzanne Jones, Melbourne; other information sessions on the I take this opportunity to remind latest developments in law and legal practitioners about the valuable – Judge Nicholas Manousaridis, resources; Sydney; and resource available to them in the form of the Federal Court Case Management • provides advice to the Law Council on – Judge Joanne Stewart, Parramatta. Handbook. The Handbook contains a matters of law and procedure, both to We note also, as we approach Australia wealth of information, guidance, ideas and assist in the development of policy and Day 2014, that in the 2013 Australia suggestions about the tools and techniques as background for the Law Council’s Day Honours lists, Section Executive available for use in the Federal Court. It liaison, submission and lobbying Committee Member Mr Simon Daley was garners the experience of judges and functions; and practitioners, and is available on the Law awarded the Public Service Medal for his • creates a professional network Council’s website. outstanding service. The Section wishes for practitioners across Australia to congratulate Simon on receiving this We hope to focus in future newsletters on within the areas of interest covered award, and looks forward to seeing if different topics that arise within the work by the Section. It represents the others with Law Council membership are of the various committees of the Section. I interests of lawyers through an recognised in 2014 encourage all practitioners with an interest Executive Committee and 9 specialist The work of the Section and its various in contributing material to this newsletter committees. to contact the editor Mr Ian Bloemendal by Committees has included: Bodies such as the Federal Court of email at [email protected] • liaising with the Federal Court judiciary Australia, Fair Work Commission, Australian and Registrars on matters relevant to I also take this opportunity to wish you and Law Reform Commission, Comcare and the profession and the courts; yours a prosperous New Year. the Commonwealth Attorney-General’s Department frequently seek the views of • providing input to the Law Council the Section during policy consultations. Working Party’s submission to the Productivity Commission inquiry into International Commercial Law access to justice and reviewing and CHRIS CUNNINGHAM and Arbitration Conference providing comment on the inquiry’s Section Chair terms of reference; 22 January 2014 The International Commercial Law and Arbitration Conference held at the Federal Court in Sydney on 22 and 23 August 2013 continued the successes of two previous

2 the law council of australia federal litigation and dispute resolution section SECTION NEWS

conferences, also hosted by the Court in providing panel comments. • Class Actions Committee and Litigation conjunction with the Law Council’s Federal Funding Sub-committee; The OECD Convention on Bribery of Litigation Section and the Business Law Foreign Officials in International Business • Client Legal Privilege Committee; Section (BLS). Transactions – chaired by Justice Gilmour • Commonwealth Compensation and Participants commended the strength of with Nicola Bonnuci (Director of Legal Employment Law Committee; the program, the high calibre speakers, and Affairs, OECD) and Bruce Gosper (CEO of • Federal Court Liaison Committee; the conference overall. Austrade) presenting, and John Agius QC • Federal Circuit Court Liaison (NSW Bar) and Jane Ellis (Transparency The proceedings will be published by the Committee; and International) providing panel comments. Ross Parsons Centre, as were the previous • Industrial Law Committee. conference proceedings. Legal and Practical Aspects of International Commercial Arbitration – The conference opened with a keynote Member benefits: chaired by Justice Besanko with the Hon. address by the Chief Justice of Australia, AC and Professor Luke The benefits ofS ection membership the Hon. AC. The program Nottage (University of Sydney) presenting, include: covered a range of commercial topics and Justin Gleeson SC (Solicitor-General) • opportunities to comment on issues including: and Professor Richard Garnett (University of being addressed by the Section and its Resolving Investor State Disputes – Melbourne) providing panel comments. committees; chaired by Justice Gordon with Professor The conference was closed by Justice • access to submissions lodged by the Leon Trackman (UNSW) and Andrew Perram. Section and its committees; Mitchell (University of Melbourne) • receipt of newsletters and online presenting, and the Hon. James Spigelman Participants included many Federal Court information bulletins containing items AC QC (former Chief Justice of NSW) and and state and territory Judges, including of topical interest about developments Max Bonnell (Mallesons) providing panel the Chief Justices of New South Wales, in law and practice in the various areas comments Western Australia and the Australian Capital covered by the committees; Territory; members of courts in the Asia Tomorrow’s World: Current and Future Pacific region, including from the High • access to a range of discounts Prospects for International Cooperation Court of Hong Kong, the Supreme Court including corporate plan arrangements in Insolvency Proceedings – chaired of Indonesia, the High Court of Kuala for domestic and international air travel, by Justine Middleton with Professor Ian Lumpur, Malaysia and the High Court of accommodation and hire cars; and Fletcher (University College London) and Johor Bahru, Malaysia, the Supreme Court • becoming part of the Law Council’s John Martin (Henry Davis York) presenting, of Singapore and the Supreme People’s extensive professional network. and Justice Jacobsen (Federal Court) Court of Vietnam; and a wide range and Professor Ros Mason ( Should you have colleagues who may wish of practitioners, academics and public University of Technology) providing panel to join the Section, please contact: servants. comments Ms Johanna Hamilton The conference organising Committee From Genesis to Revelation: the origin Law Council Membership Officer comprised Justices Perram, Jacobsen, and scope of the admiralty and maritime T: (+612) 6246 3788 Rares, Gordon, Foster and Farrell, Warwick jurisdiction in the constitutions of the F: (+612) 6248 0639 Soden (Registrar), the Hon. Kevin Lindgren United States and Australia – chaired by AC QC (Former Federal Court judge and E: [email protected] or Justice Dowsett with Professor Martin BLS representative) and Simon Daley [email protected] Davies (University of Tullane, New Orleans) (former Chair of the Federal Litigation and Professor Sarah Derrington QC Annual membership fees are modest. The Section). (Academic Dean and Head of TC Beirne half-yearly fees from January 2014, valid School of Law, ; Planning for the next conference is already until 30 June 2014: Queensland Bar) presenting, and Justice underway. • Legal Practitioner $97.50; Rares (Federal Court) and the Hon. AC providing panel comments. Specialist committees: • Young lawyers (admitted less than five years) $50; Australian Antitrust Treatment of The specialist committees of the Section Cartels: International Intersections and are the: • Academics/Judges/retirees $97.50; and Comparisons – chaired by Justice Foster • Administrative Law Committee; with Michael O’Bryan SC (Victorian Bar) and • Students $50. • Administrative Appeals Tribunal Liaison Professor Caron Beaton-Wells (University If you renew this month, half-yearly rates Committee; of Melbourne) presenting, and Justice apply. Mansfield (Federal Court) and Professor • Alternative Dispute Resolution David Round (University of South Australia) Committee;

chaper III - summer 2013–14 3 HIGH COURT AND FEDERAL COURT NEWS

High Court publishing audio-visual docket, however some parts (for example The Chief Justice encourages the recordings of Full Court hearings “Communications with Chambers” apply profession to continue to raise issues about more generally. the conduct of Court business through the The High Court has published on the Section’s Federal Court Liaison Committee Court’s website since the commencement Some other topics covered are: chaired by David Gaszner dgaszner@ of its October 2013 sittings, audio-visual • return date; thomsonslawyers.com.au or directly recordings of Full Court hearings in • interlocutory applications; through the Registrar, Deputy Registrar or Canberra. The fixed visual frames are himself. of the whole Bench, looking above and • directions hearings and Case behind counsel. Recordings are available Management Conferences; from an archive on the Court’s website • consent orders; within a few business days after hearings. • urgent applications; and Fee to register a judgment under the This innovation is not intended to set any Trans-Tasman Proceedings Act • Practice Notes and Administrative precedent for other courts. Notices. The substantive provisions of the Trans- Tasman Proceedings Act 2010 (Cth) The Guide is available from the Federal commenced on 11 October 2013. This Court’s website. It can also be accessed via High Court Amendment (Vexatious has led to a minor amendment to the the following link: Guide to the Individual Proceedings and Other Matters) Rules Federal Court and Federal Circuit Court Docket System in the Original Jurisdiction 2013 Regulation 2012 (SLI 2012 No. 280) which in the Federal Court of Australia inserts into Schedule 1 a new item 115C for The High Court Amendment (Vexatious an application to register a New Zealand Proceedings and Other Matters) Rules 2013 judgment under the Act. The filing fee for have brought the High Court Rules into Federal Court liaison registration of such a judgment is $95, with conformity with the new Part XAB of the no exemptions. Judiciary Act 1903 (Cth). At a recent meeting of the Section’s Federal Court Liaison Committee and the Court, The Federal Court Rules 2011 (Cth) (FCR) The Rules and Explanatory comment the Hon. Chief Justice Allsop spoke of were amended by the Federal Court can be viewed at: www.comlaw.gov.au/ some modifications that are being made Amendment Rules 2013 (No.1) (9 May 2013, Details/F2013L00924 to the way Court business is conducted which involved: and in particular, the way specialist panels • amending sub rules 2.32(3) and 20.13(5) operate. While variances in the number of consequential on amendments to Federal Court of Australia – Full Court and resident judges, their particular experience the Federal Court of Australia Act Appellate sitting dates for 2014 and the volume of particular types of 1976 (Cth) by the Access to Justice cases make it impractical for the panels The Full Court and Appellate sittings of (Federal Jurisdiction) Amendment to be uniform across all registries, these the Federal Court of Australia during 2014 Act 2012 (Cth) relating to discovery modifications are intended to ensure that will be held in all capital cities (subject to and suppression and non-publication the Court makes best possible use of the there being sufficient business), within the orders; available judicial resources, while also periods indicated below: allowing some opportunity for judges • Amending Division 6.1 and Schedule • 10 February – 7 March 2014; to develop further expertise in particular 1 consequential on amendments to • 5 – 30 May 2014; aspects of the Court’s jurisdiction. the Federal Court of Australia Act 1976 (Cth) by the Access to Justice (Federal • 4 – 26 August 2014; and The Chief Justice explained that the Court Jurisdiction) Amendment Act 2012 • 3 – 28 November 2014. remains very committed to the individual (Cth) relating to vexatious proceedings; docket system and does not see any tension between its operation and the • amending a number of rules to rectify existence of specialist panels in those minor errors or omissions, or to clarify Federal Court of Australia Publication – District Registries where panels have been or remove ambiguity in the FCR 2011; Guide to Individual Docket System created. The individual docket system • amending the FCR 2011 consequential operates once a matter has been allocated The Guide to the Individual Docket System on the commencement of Schedule 1 to a particular docket. Where specialist provides information to assist parties and of the Federal Circuit Court of Australia panels have been created, matters in the their lawyers conduct a proceeding in the Legislation Amendment Act 2012 (Cth) relevant jurisdictions are channelled to the Federal Court in a way which is consistent which changes the name of the Federal dockets of the judges who are members with the overarching purpose of civil Magistrates Court to the Federal Circuit of the relevant specialist panels in that practice and procedure and the obligations Court of Australia; and imposed by sections 37M and 37N of Registry but are then managed by that the Federal Court of Australia Act 1976. judge consistent with the docket system. • amending Schedule 3 to adjust the quantum of costs allowable for work The Guide should be read in conjunction As noted earlier, the Federal Court has done and services provided by lawyers with the Chief Justice’s Practice Notes, recently issued a Guide to the Individual in proceedings in the Court. particularly CM 1 Case Management Docket System which is available on its and the Individual Docket System The website Guide is primarily aimed at civil cases (other than appeals) being managed in a

4 the law council of australia federal litigation and dispute resolution section Form 50 Originating application for Practice Note CM 7 – Expert witnesses Practice Note ADM 1 – Admiralty and order in terms of arbitration in proceedings in the Federal Court of maritime work in the Federal Court of award Australia (4 June 2013) Australia Form 55B subpoena to produce Previously paragraph 2.1 of Practice Note The Practice Note on Admiralty and documents (International CM 7 set out what, under rule 23.13 Maritime Work commenced on 1 July Arbitration Act 1974 (Cth)) of the Federal Court Rules (FCR 2011), 2013. It sets out the arrangements for the Form 55c subpoena to attend for must be included in an expert’s report conduct of admiralty and maritime matters examination and produce and paragraph 2.2 set out an additional in the Federal Court. documents (International requirement that arises from case law. It deals with the Court’s national Arbitration Act 1974 (Cth)) Rule 23.13 of the FCR 2011 was amended arrangements, the identification of Form 59 affidavit on 9 May 2013 to include the requirement Admiralty and maritime work covered previously referred to in paragraph 2.2 of by the arrangements, in personam Form 67 application for extension of Practice Note CM 7 and case law. The proceedings, in rem proceedings, time revision to the Practice Note reflects this insurance of property arrested under the Form 69 Originating application for change. Admiralty Act 1988 (Cth), assisted dispute relief under section 39B of the resolution, Court annexed arbitration, the Paragraph 2.1 now includes a reference to Judiciary Act 1903 (Cth) proper approach to Admiralty and maritime the need for an expert’s report to include litigation and the conduct of cargo claims. Form 72 Notice of election petition an acknowledgement that A copy can be accessed at www.fedcourt. Form 75 Notice of appeal from a tribunal the opinions are based wholly or gov.au/law-and-practice/practice- substantially on the specialised documents/practice-notes/adm1 Form 76 Notice of cross-appeal from a knowledge mentioned under an tribunal earlier requirement in the rule to Form 79 Originating application under particularise in the report the training, Replacement of approved forms – Federal the Fair Work Act 2009 study or experience by which the Court Rules 2011 (Cth) alleging dismissal in expert has acquired specialise contravention of a general knowledge. On 9 May 2013 the Chief Justice revoked protection twenty-eight forms approved for the The former paragraph 2.2 is deleted purposes of the Federal Court Rules Form 80 Originating application under with consequential re-numbering of the 2011 and approved revised versions in the Fair Work Act 2009 (Cth) following paragraphs. replacement. The approved forms are alleging unlawful termination of available from the Federal Court’s website employment at www.fedcourt.gov.au Form 81 Originating application under Practice Note CM 22 – Video link hearing The revisions: the Fair Work Act 2009 (Cth) arrangements (5 June 2013) alleging discrimination • rectified minor errors or omissions and In June 2013 the Chief Justice issued a clarified or emovedr some ambiguities; Form 92 Notice of appeal (intellectual revised version of Practice Note CM 22 – a property) practical guide to the use of a video link in • achieved greater consistency in video conference hearings in the Federal terminology across the Approved Form 93 Notice of cross-appeal Court and associated arrangements. It Forms generally; (intellectual property) provides information on: • reflect the change of name of Fair Form 95 Originating application for • the legislative basis for use of a video Work Australia to the Fair Work determination of the terms link for testimony, appearance and Commission; and of the doing of an act under submissions; section 25(4) of the Circuit • were consequential to the Layout Act 1989 (Cth) • equipment and facilities available in commencement to amendments to the Federal Court and the associated the Rules made by the Federal Court Form 98B subpoena to produce procedures; Amendment Rules 2013 (No. 1). documents (New Zealand)

• Court directions and orders for The new and revised forms were: Form 98c subpoena to give evidence testimony, appearance or submissions and produce documents (New Form 8 Notice of ceasing to act to be given by video link, including Zealand) hearings involving interpreters and Form 15 Originating application Form 117 application for leave to appeal foreign witnesses; Form 41 Notice to admit Form 118 application for extension of • arrangements in preparation for a video Form 43B subpoena to produce time and leave to appeal link hearing; and documents Form 122 Notice of appeal • conducting a video link hearing. Form 43c subpoena to give evidence and Form 123 Notice of cross-appeal produce documents

chaper III - summer 2013–14 5 HIGH COURT AND FEDERAL COURT ADMINISTRATIVE APPEALS NEWS CONTINUED.... TRIBUNAL NEWS

Form 127 Bill of costs On 16 September 2013, the order either at the request of a party or of its own motion, that documents that Form 132 certificate of taxation AAT President, the Hon. Justice have been provided to the Tribunal in one Duncan Kerr Chev LH published application may be used in each of the new practice directions that set other applications that are being dealt Replacement of Approved Form 21 and out the policy and procedures with together. Except to that extent, the Practice Note CM 17 of the Administrative Appeals parties are not released from implied undertakings in relation to the documents On 9 October 2013 Approved Form 21 – Tribunal in relation to the use of and must apply to the Tribunal for leave to Opt Out Notice was revoked and replaced video surveillance material and be released from those if they seek to use with a revised version of the form. The documents for a purpose other than for amendment inserts an address to which implied undertakings that may the particular proceeding in which it was the completed form should be sent. apply to documents provided provided to the Tribunal. A copy of Approved Form 21 can be under compulsion during a The Practice directions are available from located at the last page in Schedule A proceeding before the Tribunal. the AAT’s website at: to Practice Note CM 17 Representative The use of video surveillance material Proceedings commenced under part IVA www.aat.gov.au/LawAndPractice/ may arise in applications lodged with the of the Federal Court of Australia Act 1976 PracticeDirectionsAndGuides/ Tribunal, including applications for review (Cth). PracticeDirections/ of decisions made under the Safety, UseOfVideoSurveillanceMaterial.htm Consequential on the replacement of Rehabilitation and Compensation Act Approved Form 21 and, with effect from 1988 (Cth) and the Seafarers Rehabilitation www.aat.gov.au/LawAndPractice/ the same date, Practice Note CM 17 was and Compensation Act 1992 (Cth). The PracticeDirectionsAndGuides/ also revised. There are two changes: practice direction requires the lodgement PracticeDirections/ and disclosure of any relevant video ReleaseFromTheImpliedUndertaking.htm • the revised Approved Form 21 replaced surveillance material unless there is a the old form in Schedule A; and The Tribunal has also issued a revised persuasive reason(s) in the particular version of its Guide to Worker’s • an explanatory paragraph is inserted circumstances of an individual case that Compensation Jurisdiction, which sets out into the introduction of the practice requires the Tribunal to make a direction to how the Tribunal manages applications note as a new para 1.1. the contrary. The fact that the credibility of for review made under the Safety, another party is or may be in issue in the The existing paragraphs in the Introduction Rehabilitation and Compensation Act 1988 proceeding will not of itself be a sufficient have been renumbered as paras 1.2 and 1.3 (Cth) and the Seafarers Rehabilitation and reason for the Tribunal to make such a respectively. Compensation Act 1992 (Cth). A copy is direction. available at: Implied undertakings may apply to www.aat.gov.au/LawAndPractice/ documents provided under compulsion PracticeDirectionsAndGuides/Guides/ in a proceeding under the Administrative GuidetoTheWorkersCompensation Appeals Tribunal Act 1975 (Cth). Subject Jurisdiction.htm to any other direction, the Tribunal may

6 the law council of australia federal litigation and dispute resolution section ARTICLE

C LASS ACTIONS – SETTLEMENT OVERTURNED ON APPEAL FOR FIRST TIME1

by John Emmerig (Partner, Jones Day) not supported by evidence and the return whether adequate notice had been given and Assoc Prof Michael Legg (Office received by the funding group members to group members of the uplift, the Federal Counsel, Jones Day) was disproportionate to the funds provided. Court found the funder’s premium to be fair and reasonable.2 he Full Federal Court in Australian The settlement Securities and Investments ASIC appealed the decision on the TCommission v Richards [2013] A group of about 1050 members, who on basis that the internal allocation of the FCAFC 89 has overturned a 35 percent advice from Storm Financial Limited (now settlement sum as between the funding uplift in recovery for group members who in liquidation) borrowed money in the form group members and other group members self-financed the cost of prosecuting their of margin loans from Macquarie Bank, was not fair and reasonable. class action (funder’s premium), over those and then used that money to invest in who did not. The uplift was designed to one or more of nine managed investment Settlement disapproved by Full reward the self-financiers in a manner akin schemes, sued Macquarie for their losses. Federal Court to the return an external funder would have Macquarie paid $82.5m (or 30.57 percent A unanimous Full Federal Court taken had one been involved. of the losses claimed) to settle the class action, which required Court approval. commenced its judgment by reiterating the The Full Federal Court decision emphasises important role of the Court in approving the important protective role that the As part of the Court approval, the class action settlements, which it described courts should play in relation to class applicant sought a funder’s premium of action settlements, especially with regard 35 percent for those group members who 1 The article is an amended composite of an to group members who do not have co-funded the litigation. This meant that article previously published by Jones Day in legal representation. The settlement was group members who contributed to the September 2013, and is printed with the kind legal costs and disbursements involved permission of the authors. This article should overturned as the funder’s premium meant not be construed as legal advice on any the settlement was not fair and reasonable in running the class action recovered 42 specific facts or circumstances. The contents having regard to the claims made by group percent of their losses, while those who are intended for general information members who would be bound by it. did not contribute only recovered 17.602 purposes only and may not be quoted percent of their losses. The percentage or referred to in any other publication or proceeding without the prior written consent The decision does not foreclose the used was determined by reference to possibility of group members funding of the authors, to be given or withheld at the range of premiums which one sees their discretion. their own class actions, but care will afforded to third-party litigation funders 2 Richards v Macquarie Bank Limited (No 4) need to be taken to ensure that all group in respect of class actions. Due to the [2013] FCA 438. members are treated fairly. The decision novel nature of the funder’s premium, may also mean a greater willingness to the Australian Securities and Investment test the reasonableness of commercial Commission (ASIC) intervened in the litigation funders’ fees as the Full Federal proceedings. Despite ASIC’s concerns Court found the amount of the uplift was about the size of the funder’s premium and

chaper III - summer 2013–14 7 as “protective”, especially in relation to total $28.875m. The contributing group to commercial litigation funders absent group members who are not legally members received a return on the amount and should, to the extent possible, represented.3 contributed of 525 percent. This was in be encouraged. However, from the the context where only the representative outset it must be established and The Court set out a number of reasons for party, in this case Mrs Richards, was at risk managed fairly to those who decide finding that the settlement was not fair and of an adverse costs order because the class to fund the litigation and those who, reasonable.4 actions regime is structured so that group for whatever reason, choose not to. There was an inequality of opportunity to members are not subject to costs orders In short, the specific funding regime used share in the funder’s premium. This arose should the class action be unsuccessful.5 in the Storm class action was problematic, from the solicitors for the applicant not The calculation of the premium was by but that does not mean that a regime for raising the concept until at least two years reference to the claimed equity lost in the group members to fund their own class after proceedings were commenced, and underlying action, not the funds advanced action cannot be designed in a manner then the specifics of the concept were for costs. The evidence disclosed that the that would be fair and reasonable. Greater unclear until the publication of the notice amount contributed by the funding group competition in the litigation funding market of settlement in March 2013. Further, members ranged from between as little as therefore remains possible. clients of the solicitor for the applicant $500 up to $31450, yet all funding group were afforded an opportunity to become The decision may also have ramifications members received the same 35 percent contributing group members who received for third-party or commercial litigation uplift. a share of the premium by contributing funding as well. The fees charged by $500 after the settlement had been litigation funders have rarely been Ramifications reached. The opportunity was not provided examined by the Federal Court when a to group members who were not clients of As the first class action settlement to be settlement is approved. However, the the solicitor. appealed and with the Full Federal Court Full Federal Court observed that the reiterating the important role of the Court amount a litigation funder charges is a The structure of the funder’s premium in the settlement approval process, it is result of a number of complicated and resulted in group members with claims to be expected that Federal Court class interconnecting factors, but in the instant that were relevantly identical being treated action settlements will be subject to case, the evidence adduced to support differently based on whether they had careful judicial oversight. In particular, the the imposition of a premium of 35 percent made a contribution to the costs of the Federal Court will want to know how the was insufficient. Further, the return on litigation. settlement affects those group members investment received by the funding group The calculation of the premium by who do not have legal representation. members was found to be disproportionate reference to the success fees obtained to the funds invested. These observations The proceedings also illustrate the role by commercial litigation funders was may suggest a greater willingness to test that ASIC may play through its statutory rejected as a suitable analogy. The group the reasonableness of a litigation funder’s power to intervene in proceedings. members who funded the litigation did fees more generally. It may also have The intervention and the publication of so in the hope that they would receive particular application to those class actions Information Sheet 180, ASIC’s Approach to full reimbursement of their funding involving funded and unfunded group Involvement in Private Court Proceedings contributions but without any expectation members where a funding equalisation (June 2013) may indicate that ASIC plans that they would receive a premium. In factor is sought. The Federal Court has on taking a more active role in monitoring comparison, a commercial litigation previously ordered that non-funded group and, where necessary, making its voice funder contributes funds on the basis that members are to have deducted from heard on important issues of public they receive a specified proportion of any their entitlement an amount equal to interest. recovery. These terms are agreed at the the commission payable to the litigation commencement of the litigation. There The outcome has been described by some funder by the funded group members was also insufficient evidence as to why as hampering the self-funding of class which is then redistributed across all 35 percent was the appropriate premium, actions by group members. However, the group members.7 The Full Federal Court’s other than printouts from websites of Full Federal Court stated:6 observations suggest that the percentage commercial litigation funders which employed as part of a funding equalisation [the] finding should not be taken seemed to suggest that those funders factor should be the subject of evidence as precluding the possibility that imposed an uplift of between 25 percent and review. group members or a sector of group and 45 percent. members might decide from the The litigation funding market in Australia The funder’s premium was outset to fund litigation on certain continues to develop as commercial disproportionate. The contributing group terms and conditions. … The Court and legal parameters change. Australian members had paid about $5m in legal accepts that this form of litigation Securities and Investments Commission v fees. The settlement provided for this to funding is an important alternative Richards [2013] FCAFC 89 is an important be repaid. The funder’s premium was in signpost in the legal requirements for the 5 Section 43(1A) of the Federal Court of funding of class actions. Australia Act 1976 (Cth). 3 Australian Securities and Investments 6 Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at Commission v Richards [2013] FCAFC 89 at 7 Dorajay Pty Ltd v Aristocrat Leisure Ltd [8]. [53]. [2009] FCA 19 at [17]; P Dawson Nominees 4 Australian Securities and Investments Pty Ltd v Brookfield Multiplex [2010] FCA Commission v Richards [2013] FCAFC 89 at 1029. [42]–[52].

8 the law council of australia federal litigation and dispute resolution section CLIENT LEGAL PRIVILEGE

Expense Reduction Analysts been obvious to a reasonable solicitor Group Pty Ltd v Armstrong that the documents had been mistakenly Strategic Management and disclosed. Waiver was upheld on the Marketing Pty Limited [2013] basis that disclosure of the documents HCA 46 was an intentional act carried out with knowledge that privileged documents may On 6 November 2013 the High Court be withheld from production; that act was delivered a judgment in in the case of done in the context of a court-ordered Expense Reduction Analysts Group Pty discovery process, where the parties’ Lists Ltd v Armstrong Strategic Management of Documents were verified and certified; and Marketing Pty Limited [2013] HCA 46 there was a lapse of time between the where it considered issues of inadvertent disclosure of the documents and the disclosure: www.austlii.edu.au/au/cases/ claim of mistake; and the mistake was not CASE CASE cth/HCA/2013/46.html obvious.

The case involved parties to a commercial The Appellants then successfully appealed NOTE dispute who had been ordered to give to the High Court, who found, amongst general discovery. The appellants had used other matters, that the issue of waiver an electronic database to store and review should never have been raised and that approximately 60,000 documents in a each of the 13 documents in question centralised, accessible manner. had been disclosed inadvertently and A number of documents in the Appellants’ unintentionally. verified List of Documents that were Although discovery is an intrusive process, subject to client legal privilege were the High Court noted that mistakenly coded as “non-privileged” in the lists that were given to the Respondents’ it is not intended that it be allowed solicitors. They were also inadvertently to affect a person’s entitlement disclosed on disks that were given to the to maintain the confidentiality of Respondents’ solicitors. documents where the law allows. It follows that where a privileged The Appellants’ lawyers discovered the document is inadvertently disclosed, error shortly thereafter and wrote to the the Court should ordinarily permit Respondents’ solicitors claiming that a the correction of that mistake and number of documents had inadvertently order the return of the document, if been disclosed contrary to their clients’ the party receiving the documents instructions. They requested the return refuses to do so. of the documents together with an undertaking by the Respondents’ solicitors The Court remarked that: that they would not rely on them in the • It must be acknowledged that legal proceedings. The Respondents’ the UCPR require a party giving solicitors refused to do so, not because discovery to be accurate in listing they disputed the assertion of inadvertence, the documents which are available but because their view was that any for production and inspection. privilege attaching to the documents had Of necessity, discovery must be a been waived. process upon which other parties The Appellants filed a notice of motion can reasonably rely. A party should seeking injunctive and other relief. The make every reasonable effort to case was initially heard by Bergin CJ in Eq, ensure the accuracy of the verified who found that nine of the documents Lists of Documents which are to had been disclosed inadvertently and form the basis for inspection. It was ordered the return of the disks containing not suggested that this obligation those documents. The Court of Appeal was not met by the steps taken overturned that decision and held that by Norton Rose with respect to its in the circumstances, it would not have

chaper III - summer 2013–14 9 clients’ discovery, yet mistakes still proceedings) must not, by their general counsel is not admitted as occurred. conduct, put a party in breach of a legal practitioner in Australia, is this duty (s 56(4) CPA). consistent with the purpose of, and • in large commercial cases, rationale behind, the doctrine of legal mistakes are now more likely to • Additionally, the position of professional privilege. occur (quoting Lawrence Collins solicitors who are in receipt of J.in ISTIL Group Inc v Zahoor, privileged documents has another [25] Legal professional privilege is where he observed that “[t]he dimension. Rule 31 of the Australian the privilege of the client, not the combination of the increase in Solicitors’ Conduct Rules, which lawyer. It exists even where the heavy litigation conducted by were adopted by the Law Council client erroneously believed the large teams of lawyers of varying of Australia, deals with the duty of legal adviser was entitled to give experience and the indiscriminate a solicitor to return material, which the advice. It would be contrary to use of photocopying has increased is known or reasonably suspected the notion of the privilege being the risk of privileged documents to be confidential, where a solicitor that of the client that the client being disclosed by mistake. is aware that its disclosure was should lose the privilege merely by inadvertent. It involves notifying the reason that the legal adviser, who is • The courts will normally only other solicitor of the disclosures admitted elsewhere, is not admitted permit an error to be corrected if and returning that material. in Australia. a party acts promptly. If the party to whom the documents have • Section 57 of the CPA provided [26] Legal professional privilege is been disclosed has been placed case management objectives to afforded as it is in the public interest in a position, as a result of the further the overriding purpose. for clients to seek legal advice, and disclosure, where it would be make frank disclosure in doing so, In the circumstances, it was said that the unfair to order the return of the without fear of disclosure. There is appropriate direction that the Supreme privileged documents, relief may a corresponding public interest in Court should have promptly made in this be refused. However, in taking legal advisers being able to give full case was to permit the Appellants’ lawyers such considerations (analogous and frank advice, without fear of to amend their client’s Lists of Documents, to equitable considerations) into disclosure. It would be contrary to together with consequential orders for the account, no narrow view is likely that public interest if the privilege return of the disks to enable the privileged to be taken of the ability of a party, were to be lost merely by reason that documents to be deleted. or the party’s lawyers, to put any the legal adviser, who is admitted to knowledge gained to one side. practice, is not admitted in Australia. Aquila Coal Pty Ltd v Bowen That must be so in the conduct Central Coal Pty Ltd Note: The Federal Litigation Section of the of complex litigation unless the Law Council of Australia will be updating documents assume particular A Supreme Court of Queensland decision its Client Legal Privilege Watch website in importance. – Aquila Coal Pty Ltd v Bowen Central early 2014. The Client Legal Privilege Watch Coal Pty Ltd [2013] QSC 82 – by Justice In this case, the Court also noted that: website can be accessed at www.fedlaw. Boddice on 28 March this year, upheld a org.au/clpwatch.html • The overriding purpose of the Civil privilege claim in a case where a former Procedure Act 2005 (NSW) (CPA) (in-house) General Counsel was a foreign If you have been involved in any cases of and NSW UCPR was to facilitate admitted lawyer and did was not admitted interest or significance, please forward the just, quick and cheap resolution as an Australian Legal Practitioner not details of the case (with a short case note of the real issues in the dispute or hold any local practicing certificate.H e summary) at any time, for consideration proceedings. nevertheless acted as an independent legal by the Newsletter Editor (Ian Bloemendal: advisor. [email protected]). • In order to achieve that purpose, s56(2) of the CPA provides that the The case reaffirms legal professional court: privilege as an important common law immunity, not just a rule of evidence, must seek to give effect to which belongs to the client and enables the overriding purpose when the full and frank disclosure of information it exercises any power given between client and their legal adviser. to it by this Act or by rules of court and when it interprets any The Court noted that while the presence provision of this Act or of any of a practising certificate can be a relevant such rule. factor in determining privilege, it is not determinative of the existence of privilege. • Parties to civil proceedings are also under a duty to assist the Court At paragraphs 24–26 of the judgment it to further the overriding purpose observes: (s 56(3) CPA). [24] A conclusion that legal • The lawyers representing parties professional privilege can attach in civil proceedings (or any person to the documents in question, with a relevant interest in the notwithstanding that the defendant’s

10 the law council of australia federal litigation and dispute resolution section ARTICLE

FUNDING OF THE AUSTRALIAN FEDERAL COURT SYSTEM: A LOOMING CRISIS?

by David Gaszner (Chair, Federal Court privacy and other areas of law in which But the notion that the courts are but Liaison Committee and Federal Circuit jurisdiction has been conferred on an another branch of the public service and Court Liaison Committee) almost ad hoc basis. that they can continually become more productive, so that there is room for cutting It is vital that this be clearly understood 8 funding without changing their capacity to Properly funded Federal Courts and that it inform decisions by government function, is fundamentally flawed in theory are essential to the rule of law in that affect the capacity of these Courts to and application. The majority of the costs Australia perform their essential role. At a most fundamental level, the Federal of the courts are fixed costs (e.g. building costs) and judicial salaries, to which the Court of Australia plays a critical role in The Federal Courts are not just efficiency dividend also notionally applies, the maintenance of the rule of law in the another government agency Commonwealth. In addition, the Court is, and which cannot be reduced. The full as Chief Justice Allsop said at his swearing The first step in achieving this impact of the efficiency dividend therefore in March 2013, critical to the commercial understanding is recognition that neither has to be achieved out of administrative life of the nation and fosters efficient and federal court is simply an agency of the cost savings and that translates in practice fair commerce across Australia. government of the day, merely delivering to only one thing: staff salaries. Chase that services for a fee. Instead, a strong and to its conclusion and the consequence if The Federal Circuit Court, in its general independent judiciary is the third – and federal jurisdiction, also now plays an an essential – pillar of our system of increasingly important role in the affairs of government. Unfortunately though, there the nation and the protection of the rights has been a persistent and pervasive view of its citizens. For example, it carries the to the contrary in governments of the past primary burden of the migration and Fair that has had a material adverse impact on “It is vital that this be Work jurisdictions. It also has jurisdiction in the funding and the capacity of the Courts a range of other Commonwealth matters to discharge their important role in our clearly understood and including what are sometimes referred democracy. to as its “boutique jurisdictions” such as that it inform decisions consumer affairs, copyright, admiralty, This manifests itself most obviously in the apparently arbitrary application to the by government that Courts of the Australian Government’s 8 This article is particularly concerned with the affect the capacity of efficiency dividend. If the new Government Federal Court of Australia and the Federal Circuit Court of Australia exercising its adheres to the approach of the last, these Courts to perform general federal jurisdiction. However, the the efficiency dividend expected of discussion in relation to the FCCA inevitably Commonwealth agencies and courts will their essential role.” also relates to the financial issues that increase to 2.25%, and it will apply across confront that Court in the exercise of its total jurisdiction. the whole of the cost of the courts.

chaper III - summer 2013–14 11 nothing changes is that the courts will be While some ad hoc funding has been This reduces the capacity of the Federal left without staff. provided for specific needs, the impact of Circuit Court to do its work, and inevitably, these changes has not been considered certain circuits will be under risk. Further, The Australian Government therefore holistically. Fundamental questions seem while the Court presently goes on circuit needs to address the efficiency dividend not to have been considered at a baseline to 33 locations around Australia, it does as it applies to the Federal Courts. Most level, such as “What does this mean for the so primarily in the exercise of its family immediately perhaps, the Government Court’s resources? What is now required? law jurisdiction. Ideally, it would at least might accept that the efficiency dividend Is there scope for funding to be returned? maintain this number of circuits and cannot apply to that portion of the courts’ Is more funding needed?” Once these enhance its capacity to undertake the funding that relates to judicial salaries. questions have been addressed, they must broader general federal work of the Court also be periodically revisited. Increases in the community is that it visits. But it Funding models out-of-date in workload that come from changes needs to be properly resourced to do that, The financial position of both the Federal in jurisdiction, for example, might be and needless to say it is more expensive for Court and Federal Circuit Court is difficult. manageable if every few years there was the Court to run a case in Albury than it is Without further funding the Federal Court a review of the resource base and it was to run a case in Sydney. Budget constraints is likely to find itself in deficit in the next reset to take account of the changes in are also now such that it is now possible calendar year, and that will only worsen jurisdiction. that regional registries may have to close thereafter. The Federal Circuit Court has in order to achieve required savings. The never been properly resourced and its The establishment of a true Federal Circuit Court would then need to financial position also continues to be Circuit Court of Australia access state courts if it was to continue under great strain. There is a very real issue for the Federal circuits to those locations. While there has been considerable goodwill shown In addressing the funding of the Courts, Circuit Court that is critical to that Court’s to date, the fact is that this will lead to the Government might begin by re-basing efficiency and most importantly, access increased competition for resources and the funding models applicable to each. to justice, but which seems not to have accommodation in those regions with The models upon which current budgets attracted the attention it ought, namely, the state Courts which are themselves are set have not been critically reviewed the accommodation of the Court. This experiencing significant financial pressure. against the backdrop of the changes that manifests itself in two ways primarily. have occurred in the two Courts over the First, the Court in Sydney now operates Judicial resources and the last 10 or so years and are now seriously from a number of different locations. It capacity of the Courts to function out-of-date. sits to hear matters in its general federal The financial constraints under which the jurisdiction in William St and Goulburn St In the Federal Court, for example, there courts are operating is most evident to but the General Federal Registry remains have been numerous significant changes lawyers and their clients in the impact it has in Queens Square (with the Federal Court). in jurisdiction, changes resulting from the on judicial resources. Recent appointments That is, to say the least, confusing for creation of the Federal Magistrates (now to the Federal Court have brought it to litigants and problematic for the Judges. Federal Circuit) Court (including the fact full complement, but it is not satisfactory that the Federal Court now effectively Secondly, its capacity to do circuit work that many positions were vacant for a maintains both its registry and that of (if not its raison d’être, at least the reason considerable period of time, with the result the Circuit Court and its registrars have for its new name) is significantly impeded that, for example, the Court was for a delegated functions that see them sit in by its inability to access premises and time unable to field specialist lists in some both courts, changes in technology and associated support facilities and services Registries and litigants and their lawyers information management demands and in a timely and efficient manner. It is were registry shopping, which only added requirements, changes in the workload of extraordinary that a court that has been to the burden on the Court in those other judges as a consequence of, for example, rebranded and promoted on the basis that registries. changes in the way litigants conduct it is a true circuit court is in many instances In reflecting on the number of judges matters, and changes in the nature and unable to go on circuit because necessary and the nature of the importance of number of support staff required to Commonwealth/state arrangements appointing judges with the appropriate maintain the efficient operation of the are not in place to support it. Those background and experience, it is important Court and its registries. facilities and other requirements include to remember that the Court needs to accommodation, technological support The same can be said for the Federal have the capacity to move quickly and and proper security for judicial officers. Circuit Court. When the base for the decisively if a particular case requiring an Every Commonwealth court building in funding of that Court was set, it had urgent hearing and specialist experience the main cities is (properly so) replete with nothing like its current jurisdiction. arises. The Court’s response in the Patrick security. However, there is often no (or Migration related work, in particular, has Stevedore and Children Overboard cases no adequate) provision for security in the grown significantly, as has the Court’s are examples that spring to mind. And it places to which the Court goes on circuit. Fair Work jurisdiction. The Court will should be remembered that many of the Yet it is dealing with the same litigants in inevitably also be called upon to perform most significant matters that have gone the same, often highly emotionally charged more work in its intellectual property and on to be determined by the High Court in jurisdictions of human rights, migration and other boutique general federal areas of relation to migration, for example, have first family law. jurisdictions. been to the Federal Court – and now likely will be taken to the Federal Circuit Court.

12 the law council of australia federal litigation and dispute resolution section ARTICLE

There are also a number of judges of the Federal Court who have additional responsibilities beyond their immediate judicial role in the Court. The Presidents “We need to play our part in educating governments of the AAT, Fair Work Australia, and the and the broader population to which they appeal Australian Competition Tribunal are all Judges of the Federal Court (and other every few years for votes about the critical role that judges are also often involved in those jurisdictions). In addition, a number of the the Federal Courts play in our democracy and the Court’s judges also sit on courts across the consequences that will follow if we do not properly South Pacific and Papua New Guinea – all for good policy reasons, but these are fund and resource them.” further drain on available judicial resources in the primary jurisdiction of the Court.

The issue of judicial resources impacts even more so in some respects in the Federal Circuit Court. That is becoming more evident as additional work flows to created by the existing judicial workload, qualified and experienced judges who are that court. About 50% of all general federal will have an adverse effect on available committed to the rule of law. law work (in number of matters filed) is in judicial resources. And that is before judges We need to play our part in educating the Federal Circuit Court and about 87% take annual or sick leave in the ordinary governments and the broader population of all Family Law matters. The resourcing course. to which they appeal every few years for of the Court has not kept pace with this What is required is therefore a commitment votes about the critical role that the Federal increase in volume and there are still that the Government will continue Courts play in our democracy and the only about 14 judges of that Court who to monitor judicial resources that are consequences that will follow if we do not have come to it with a specialist general available and fill vacancies according properly fund and resource them. federal rather than family law background. to need in a timely manner – and in That is a totally inadequate number of anticipation of vacancies or at the very judges for a supposedly national, let alone worst, promptly upon the vacancy arising. national Circuit Court and is inimical to Recent experience also demonstrates that the development of the general federal it is important that positions are filled are jurisdiction and of a truly national Circuit filled by appointees who have the most Court in those areas of practice. appropriate knowledge and experience There is also an increasing trend in the having regard to the nature of the vacancy, explanatory memoranda accompanying existing registry resources and the new legislation to say that there will be no anticipated work of the Courts in coming net impact on Commonwealth resources years. because matters will be dealt with within the existing court structures. The proposed Our role in ensuring the viability Military Court is a good example. There is of Australia’s federal courts to be no net effect on funding because The profession needs to engage the monies will be transferred from one Australian Government over these issues. department to the other. But the Court We have a new Government and as any itself is likely to comprise existing Judges of reader of the daily papers well knows, the Federal and Federal Circuit Court who budgetary issues loom large. A cynic will be dual appointments. That proceeds might note that there are not many on the assumption that the core workload votes in the funding of the Federal Court of each Court will somehow be unaffected system. Ironically though, there are votes and that the responsibility of existing judges in addressing law and order issues in the can just continue to grow without any sense of border security, the international impact on their capacity to discharge their drug trade, and terrorism. The disconnect primary roles. perhaps comes from the fact that the Finally, and of particular concern to an public does not understand that the issues already stressed Federal Circuit Court, to which a focus on these law and order approximately 7 members of the Court will issues can give rise – such as an increase turn 70 by 31 December 2015 and will have in prosecutions, the invasion of personal to retire. Two of those 7 practice in the privacy, and denials of human rights– are general federal jurisdiction and are based all issues that can only be and must be in Sydney. Those pending retirements, addressed in and resolved by a strong coupled with the attrition that comes and effective court system resourced from stress and other health related issues with independent and appropriately

chaper III - summer 2013–14 13 HAVE YOU RENEWED YOUR MEMBERSHIP?

Membership renewals for the 2013–14 financial year are now long overdue. For membership enquiries contact the Membership Officer on: If you do not renew your membership, this will be the last edition of the Federal Litigation Tel: (02) 6246 3788 Section Newsletter that you will receive. [email protected]

Mr Peter Kite SC Class Actions Committee and Litigation Section Executive Frederick Jordan Chambers, Sydney Funding Sub-committee T: 02 9229 7333 Co-chairs Chair F: 02 9221 6944 John Emmerig Mr Chris Cunningham E: [email protected] Jones Day, Sydney Simmons Wolfhagen, Hobart T: 02 8272 0506 T: 03 6226 1200 Ms Bronwyn Lincoln F: 02 8272 0599 F: 03 6226 1292 Herbert Smith Freehills, Melbourne E: [email protected] E: [email protected] T: 03 9288 1686 F: 03 9288 1567 Mr Ben Slade Deputy Chair E: [email protected] Maurice Blackburn Pty Ltd, Sydney Mr John Emmerig T: 02 8267 0914 Jones Day, Sydney Mr Ingmar Taylor SC F: 02 9261 3318 T: 02 8272 0506 State Chambers, Sydney E: [email protected] F: 02 8272 0599 T: 02 9223 1522 E: [email protected] F: 02 9223 7646 Client Legal Privilege Committee E: [email protected] Chair Treasurer Mr Harry Dixon SC Mr Peter Woulfe Section Administrator Frederick Jordan Chambers, Sydney Blackburn Chambers, Canberra Dr Hanna Jaireth T: 02 9229 7351 T: 02 6247 5040 Law Council of Australia, Canberra F: 02 9221 9580 F: 02 6249 1760 T: 02 62473722 E: [email protected] E: [email protected] E: [email protected] Commonwealth Compensation & Members Employment Law Committee Mr Ian Bloemendal Chair Clayton Utz, Brisbane Committees Mr Peter Woulfe T: 07 3292 7217 within the Section Blackburn Chambers, Canberra F: 07 3221 9669 T: 02 6247 5040 E: [email protected] AAT Liaison Committee F: 02 6249 1760 Chair E: [email protected] Mr Simon Daley PSM Mr Chris Cunningham Australian Government Solicitor, Sydney Simmons Wolfhagen, Hobart Federal Court Practice Committee T: 02 9581 7490 T: 03 6226 1200 and Federal Circuit Court Liaison F: 02 9581 7732 F: 03 6226 1292 Committee E: [email protected] E: [email protected] Chair Mr David Gaszner Mr Harry Dixon SC Administrative Law Committee Thomsons Lawyers, Adelaide Frederick Jordan Chambers, Sydney Chair T: 08 8236 1354 T: 02 9229 7351 Mr Michael Will F: 08 8232 1961 F: 02 9221 9580 HWL Ebsworth, Canberra E: [email protected] E: [email protected] T: 02 61512100 Industrial Law Committee Mr David Gaszner F: 02 9232 7626 Chair Thomsons Lawyers, Adelaide E: [email protected] Mr Ingmar Taylor SC T: 02 9581 7490 Alternative Dispute Resolution Committee State Chambers, Sydney F: 02 9581 7732 Chair T: 02 9223 1522 E: [email protected] Ms Mary Walker F: 02 9223 7646 Mr Tom Howe QC Barrister, Wentworth Chambers, Sydney E: [email protected] Australian Government Solicitor, Canberra T: 02 8815 9250 T: 02 6253 7415 F: 02 9233 4464 F: 02 6253 7384 E: [email protected] E: [email protected]

Law Council of Australia GPO Box 1989 Telephone: +61 2 6246 3788 19 Torrens Street Canberra ACT 2601 Fax: +61 2 6248 0639 Braddon ACT 2612 AUSTRALIA Email: [email protected] AUSTRALIA 14 the law council of australia federal litigation and dispute resolution section