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Expert Evidence THE JOURNAL OF THE NSW BAR ASSOCIATION | SPRING 2018 rise2018 RELEVANT / RESILIENT / RESPECTED 15 – 17 November 2018 International Convention Centre S ydney TO REGISTER, PLEASE VISIT WWW.NATIONALCONFERENCE.AUSTBAR.ASN.AU Expert evidence PLUS Crisis in Legal Aid The 2018 Bathurst Lecture An interview with Greg Tolhurst CONTENTS THE JOURNAL OF THE NSW BAR ASSOCIATION | SPRING 2018 02 EDITOR’S NOTE 04 PRESIDENT’S COLUMN 06 NEWS 2018 Bench and Bar Dinner Bar Practice Course 01/2018 2018 Tutors and Readers Dinner EDITORIAL COMMITTEE Networking with a twist: the 2018 KWM Equitable Briefing Event Ingmar Taylor SC (chair) ADF Reserve Panel Dining In Anthony Cheshire SC Dominic Villa 14 OPINION Christopher Withers The limits of cross-examination Nicolas Kirby Legislating to end the Ellis defence Daniel Klineberg Catherine Gleeson Crisis in legal aid Victoria Brigden Market manipulation Caroline Dobraszczyk No memory: The ultimate defence? Talitha Fishburn Juliet Curtin 26 RECENT DEVELOPMENTS Radhika Withana 37 ADDRESSES David Robertson Kevin Tang The 2018 Bathurst Lecture Alexander Edwards 44 FEATURES Charles Gregory Expert evidence Bar Association staff member: Chris Winslow • A guide to concurrent expert evidence in NSW • Cross-examination of expert witnesses ISSN 0817-0002 • Reconsidering waiver of privilege Views expressed by contributors • Preparing expert witnesses to Bar News are not necessarily • Admissibility of expert evidence those of the New South Wales Bar Association. 86 LEGAL HISTORY Contributions are welcome and The fascinating life of James Martin should be addressed to the editor: 50 years of UNCITRAL: What’s next? Ingmar Taylor SC Here he lies: Justice Douglas’ Arlington Grave Greenway Chambers Percy Valentine Storkey VC L10 99 Elizabeth Street Sydney 2000 105 PRACTICE DX 165 Sydney How to stop waking at 3am Contributions may be subject to Regional practice in 2018 editing prior to publication, at the 111 WHO IS A BARRISTER? discretion of the editor. Mark Higgins - skydiving barrister Cover: Playing in the hot tub, 113 INTERVIEW by Rocco Fazzari Greg Tolhurst 118 COMMITTEE ROUNDUP Chronic underfunding is the cause of delays in family law 120 OBITUARIES The onH CSC Sheller AO QC Bar News is published under a Sir Laurence Street Creative Commons ‘free advertising’ license. You are free to share, copy 122 APPOINTMENTS and redistribute the material in any 123 BOOKS medium or format. You must give appropriate credit, provide a link to 127 BAR SPORTS the license and indicate if changes Cricket were made. You may do so in any reasonable manner, but not in any 128 BULLFRY way that suggests the licensor Bullfry and the tennis circuit endorses you or your use. You may not use the material for commercial 130 ADVOCATUS purposes. If you remix, transform or 131 ARCHON’S VIEW build upon the material, you may not distribute the modified material. 132 THE FURIES The Journal of the NSW Bar Association [2018] (Spring) Bar News 1 EDITOR’S NOTE A special edition on expert evidence I own one particularly well-thumbed past cles on legal history. In this edition Michael edition of Bar News: Andrew Bell’s Decem- Slattery tells us the fascinating story of Percy ber 2006 special edition on expert evidence. Valentine Storkey, the Sydney Law Student One of my first steps as editor was to and District Court Judge who won a Victoria commission Hugh Stowe of 5 Wentworth Cross in World War I. Geoffrey Watson SC Chambers to curate an updated suite of ar- writes about why US Supreme Court Justice ticles on expert evidence. In this edition you Douglas’ grave lies in Washington DC’s Ar- will find his thoughts on the ethical bounda- lington Cemetery in both senses of the word. ries involved in reviewing (not settling!) draft Can I end by thanking the outgoing Bar expert reports. A second article considers the News committee members on behalf of difficult question of whether legal profession- myself and my predecessor. Bar News is very al privilege can be maintained in respect of much a collaborative effort, and leans heavily communications with an expert. Victoria circuit brief greater than their legal aid brief on its committee members, and those who Brigden has written on cross-examination of fee. The book asks the question, why isn’t have left the committee will be missed. experts. David Robertson and Charles Greg- the resourcing of the criminal justice system ory provide an up to date and deeply practi- the subject of debate in the same manner as Ingmar Taylor cal discussion on the admissibility of expert access to health care? Perhaps it is because Greenway Chambers evidence. And there is a comprehensive most think a brush with the courts will not guide to concurrent expert evidence – or ‘hot happen to them – when in fact exposure to tubbing’ – by Adam Batt and Hugh Stowe. crime is as happenstance as a sudden illness An enormous amount of work has gone into or accident. these splendid articles, and Bar News records Michael Kearney SC writes about anoth- its appreciation to each of the contributors, er area of chronic underfunding - family and to Hugh Stowe in particular. law, and the extensive delays that occur in We are also pleased to publish the inau- that jurisdiction as a result. Matters being gural Bathurst Lecture on commercial law, commenced today involving children are delivered by the Hon Murray Gleeson AC unlikely to be determined inside three years. QC. Rocco Fazzari, previously of Fairfax, In regional centres matters listed for hearing has painted a portrait of Gleeson to accom- are routinely not reached and stood over for pany the lecture, along with three marvelous months to the next set of hearing days, when illustrations to accompany our expert evi- they may again not get reached. At times Bar News thanks Hugh Stowe for dence pieces. legal aid funding is exhausted before the curating the special edition articles This edition also carries some great pieces matter can be heard. on expert evidence. describing the practice of the Bar. First among This edition also carries some wonderful them is the piece by Alexander Edwards and positive stories, including a fantastic inter- Ting Lim on the regional bar – the 104 mem- view with Greg Tolhurst, who took over bers of the Bar Association whose chambers the role of executive director of the NSW are outside the Sydney CBD. Heydon Miller Bar Association in October 2016. The ar- (Orange), Shanna Mahoney (Parramatta), ticle reveals a learned and thoughtful man, Sophie Anderson (Lismore) and Belinda Ep- whose nascent career as a drummer in a stein (Newcastle) each describe the benefits rock band was happily cut short, and who, of practicing away from Sydney. through a series of fortunate events, became a Emmanuel Kerkyasharian has written well-published legal academic before joining a searing article on the wholly inadequate the Bar Association. Greg discusses the Bar Legal Aid rates, which have not increased Association’s strategic plan as one with many since 2007. A barrister briefed by Legal Aid initiatives, but to achieve them you need an to prepare and appear in a four week murder end point. ‘…the role of the Bar Association trial for an accused was paid $9.37/hour after is to safeguard the rule of law and support the expenses, less than half the national min- administration of justice in NSW through a imum wage. Emmanuel’s article is echoed sustainable cohort of high quality independ- in Catherine Gleeson’s review of The Secret ent practitioners at the Bar operating with Barrister, a book by an anonymous British integrity and thriving in a changing legal barrister. Baby barristers there at times liter- environment.’ ally pay to work, with their train fare for a Bar News remains the home of great arti- 2 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRESIDENT’S COLUMN A legal profession, not a legal business ‘The one great principle of the English law,’ The Bar Association has formed an hoc Charles Dickens once quipped, ‘is to make working party comprising E A Cheeseman business for itself’.1 Some 165 years later, SC, G A Donnellan and J C Conde to assist our profession still faces accusations that the us to consider and respond to the ALRC’s price to pay to access justice is too high. proposals. In May the ALRC released a dis- While we practise in a period of rapid cussion paper outlining proposals for reform. change, including the increasing interna- In July, the association provided input to the tionalisation and commercialisation of the Law Council of Australia on these proposals. law, the Bar Association’s Strategic Plan rec- The time is long overdue to explore these ognises that these changes occur against the issues thoroughly. In doing so, we must be constant of community and court concern prepared to look to other jurisdictions and about the cost of litigation. troduced to regulate third-party litigation learn from their experiences and mistakes. The cost of accessing legal representation funders; and whether solicitors should be Disputes and litigation are not limited to and justice services remains a live concern to permitted to enter into contingency fee ar- NSW, nor should discussions of policy be. Australia’s legal profession in the 21st centu- rangements. I recently had the privilege of meeting with ry. Cost is often the decisive factor for clients While these are not new arguments, it the president of the New York City Bar As- considering whether to engage counsel or has become increasingly clear with the rise sociation, Roger Maldonado. I walked away pursue litigation. The costs associated with of class actions that a definitive answer is from that meeting with the conviction that litigation are prohibitive and may deter mer- needed to provide clarity and maintain con- we are strongest as a legal profession when itorious claimants from seeking recourse via fidence in our courts and our lawyers.
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