Evidence and Advocacy Conference
Hear from 12 of the best, including the Honourable Justices Weinstein and Kunc, Senior Counsel, and other experienced litigators. Learn how to prepare expert evidence for complex commercial litigation, the practice of ‘conversation evidence’, the ethics of privilege & inadvertent disclosure. Get tips on managing evidence collection, preparation, and admissibility. Gain instruction on advocacy in interlocutory & urgent applications, and guidance on written advocacy & advocacy in mediations. 243N03
Description
Attend and earn 7 CPD units including:
2 units in Substantive Law
1 unit in Ethics & Professional Responsibility
4 units in Professional Skills
This program is applicable to practitioners from all States & Territories
Session 1
An Evidence Masterclass
Chair: Vera Culkoff, Barrister, 2 Selbourne Chambers
9.00am to 9.25am Opening Address
Presented by The Hon. Justice Richard Weinstein, Supreme Court of New South Wales
9.25am 10.20am Preparation of Expert Evidence, Particularly in Complex Commercial Litigation
- The role of lawyers in preparing expert evidence: New Aim Pty Ltd v Leung
- Issues under the Evidence Act: see Dasreef Pty Ltd v Hawchar(2011) and Makita (Australia) Pty Ltd v Sprowles(2001)
- Hindsight bias, its role and efforts to protect against it
- Expert concurrent evidence: Joint expert reports, ‘hot tubs’ and cross-examination
Presented by Cynthia Cochrane SC and Aditi Rao, Barrister, Level 22 Chambers
10.20am to 11.10am A Quiet and Profound Revolution in the Law and Practice of ‘Conversation Evidence’: Kanes Hire Pty Ltd v Anderson Aviation Australia Pty Ltd
- Examine the significant practical implication of Kanes Hire for case preparation and presentation
- Explore the principles of the psychology of memory which underpin the new approach
- Gain recommended practice guidelines for evidence preparation, which are informed by the decision and the broader principles of the psychology of memory
- Understand the wider implications for practice and the administration of justice, of the psychology of memory (generally) and the profound vulnerability of conversational memory to distortion (specifically)
Presented by Hugh Stowe, Barrister, 5 Wentworth Chambers and Alexander Vial, Barrister, 5 Wentworth Chambers
11.10am to 11.25am Morning Tea Break
Ethics & Professional Responsibility
11.25am to 12.25pm Implied Waiver of Privilege and Inadvertent Disclosure: Challenges for Advanced Practitioners
- Scope of legal professional privilege
- Implied waiver: the grey areas and how to avoid unforeseen pitfalls
- Inadvertent disclosure and what to do when there is an inadvertent disclosure
- Challenges posed by electronic documents and large volume discovery
- Analysis of recent cases
Presented by Julian O’Sullivan, Barrister, 13 Wentworth Chambers
Professional Skills
12.25pm to 1.15pm PANEL DISCUSSION: Managing Problems with Evidence Collection, Preparation and Admissibility: Tips and Traps
Facilitator: Vera Culkoff, Barrister, 2 Selbourne Chambers
Panellists:
Jason Betts, Partner, Global Co-Head of Class Actions, Herbert Smith Freehills
Julian O’Sullivan, Barrister, 13 Wentworth Chambers
Session 2
Mastering Your Advocacy Skills: Insights from the Experts
Chair: Kate Eastman AM SC, New Chambers
Professional Skills
2.00pm to 3.00pm Written Advocacy: Writing with Effect and Persuasion
Senior Counsel imparts advanced strategies for skillfully persuading the court through the use of correspondence, affidavits and submissions
Presented by Anthony Cheshire SC, 8 Wentworth Chambers
Professional Skills
3.00pm to 4.00pm Collaboration not Advocacy at Mediation
- Mediation does not involve proof of facts or persuasion of a third party
- Appropriate and helpful preparation for mediation does not involve
- Preparing your clients as if he/she is going to be a witness in court
- Preparing yourself as if you are going to represent your client in court
- Focus needs to be on client’s best interests, empowerment and on collaboration
Presented by Max Kimber SC, The Olive Rooms
4.00pm to 4.15pm Afternoon Tea Break
Professional Skills
4.15pm to 5.15pm HEAR FROM THE BENCH: Interlocutory and Urgent Applications Advocacy
Presented by The Hon. Justice Francois Kunc, Supreme Court of New South Wales
Presenters
Vera Culkoff
Vera Culkoff graduated in law from the University of Technology, Sydney in early 1990 with First Class Honours and the University Medal. Her practice is in commercial law and equity, with an emphasis in building and construction disputes. Such proceedings have commonly involved complex contractual disputes, misleading and deceptive allegations and the Building and Construction Industry Security of Payment Act 1999 (NSW). She also practices in the area of wills, probate and family provisions disputes, involving complex issues and large estates. She has experience in class actions, having been involved in commercial class actions against Westpac, ANZ, AMP and GIO. Vera has been involved in litigation on both sides of the fence: having worked at Clayton Utz doing defence work before joining Cashman & Partners and becoming an equity partner (now Maurice Blackburn). She remained a partner of the new firm until 2000, responsible for commercial and product liability litigation. She was called to the Bar in 2000. Vera was joint General Editor of the Australian Product Liability Reporter (from 2006 to 2011) and has conducted presentations at seminars on class actions and, whilst at the Bar, in building and construction law. In Timwin Construction v Facade Innovations [2005] NSWSC 548 (McDougall J), the notion of "good faith" was first argued by Vera and accepted by the Court in the context of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). It is now an entrenched part of the law in this field. In Vince Schokman v Xception Construction Pty Limited [2005] NSWSC 297 (Einstein J), the question of election under the same Act was first raised by Vera and resolved in favour of the argument put forward by her.
The Hon. Judge Richard Weinstein SC
Justice Weinstein is a Judge of the Supreme Court of New South Wales. He was appointed senior counsel in 2011, and was a member of the Bar Council of the NSW Bar Association and the Chair of a Professional Conduct Committee for many years. He was appointed a Judge of the District Court of New South Wales in 2018 and elevated to the Supreme Court in 2023. He is Adjunct Professor of Law at the University of New South Wales, where he has taught the law of evidence, civil procedure, advocacy and sentencing. He is the lead author of Uniform Evidence in Australia, 4th ed.
Cynthia Cochrane SC
Cynthia Cochrane SC has a breadth of experience in patent law. She also specialises in commercial cases, with particular experience in competition and consumer law, business restraints of trade, insolvency and corporate governance. Cynthia Cochrane SC appears regularly in the Federal Court and Patent Office. She has a depth of appellate experience, including High Court experience over more than 15 years. She also appears in commercial matters in the NSW Supreme Court.
Aditi Rao
Aditi Rao is briefed in a wide range of commercial and public law matters, including corporations law, insolvency, financial products and services and judicial review. Prior to being called to the bar, Aditi worked for Freehills (now Herbert Smith Freehills) as a commercial litigation solicitor. She was also an associate to Justices of the High Court and Federal Court of Australia, and research assistant to the Solicitor-General in South Australia.
Hugh Stowe
Hugh Stowe is a member of 5th Floor Wentworth Chambers, and has been at the bar for 10 years. He practices in equity and commercial litigation, with specialisation in insolvency and corporations law matters. He has an undergraduate degree from Sydney University, and a Master of Laws from Cambridge. Before coming to the Bar, he practised at Freehills and Mallesons, and was the Associate to the Chief Justice of the Federal Court of Australia. He has also lectured in law in the University of Durham, in the UK, in subjects including administrative law. While at the Bar, he served for 3 years as legal adviser of the Disciplinary Tribunal of the ASX, in which capacity he sat in on disciplinary proceedings before that Tribunal. He has also served for 4 years on a Professional Conduct Committee at the Bar, being a committee involved in disciplinary proceedings against barristers. Has written papers and delivered seminars on various topics, including bias, expert evidence, legal professional privilege, corporations law, the ethics of witness preparation, restraint of trade.
Alexander Vial
Alexander maintains a national practice in complex commercial and regulatory matters. He is recognised as a Leading Junior (Band 1) for competition law and as a “Rising Star” in regulatory matters in the Legal500 rankings. Alexander specialises in commercial and regulatory litigation that covers all areas of competition and consumer law, trade practices including franchising, class actions, insolvency, intellectual property, and employment law. Alexander regularly advises on and appears in regulatory investigations and enforcement matters, as well as in Royal Commissions and inquiries. Before being called to the Bar, Alexander was a Senior Associate at Clayton Utz in Sydney where he specialised in competition, consumer law, and regulatory investigations and litigation. Earlier in his career, Alexander served as the Associate to the Honourable Chief Justice Doyle AC of the Supreme Court of South Australia and, after his Honour’s retirement, the Associate to the Honourable Chief Justice Kourakis. Alexander’s education includes a Bachelor of Civil Law (BCL) from the University of Oxford and a Bachelor of Laws (LLB) with First Class Honours from the University of Adelaide. Alexander is a founding author of Zuckerman on Australian Civil Procedure, a leading text on Australian civil procedure that is now in its second edition. He regularly publishes articles in a number of practitioner and academic journals.
Jason Betts
Jason is widely regarded as one of Australia’s leading class action, regulatory investigation and product liability specialists. He has over 25 years’ of litigation experience and has defended the largest class actions and investigations in the Australian market. He is one of the few Australian defence lawyers to have run a class action to final trial and judgment, and is the only Australian lawyer to win two shareholder class actions at trial (on behalf of Worley and Iluka). Jason also led the defence of two of Australia’s largest ever product liability class action cases, and acted for the defendant in the seminal Australian decision on third party litigation funding in Australia – Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd. Jason is a Visitor to the University of Sydney Law School, teaching the post-graduate course “Class Action Litigation in Australia”. In 2022 Jason co-authored the third edition of the leading class actions text book in the country, “Class Actions in Australia”. He obtained his Master of Laws from the University of Virginia, specialising in class action defence theory.
Julian O'Sullivan
Julian O'Sullivan of 13 Wentworth Chambers was admitted to practice as a solicitor in March 1996. He worked in the dispute resolution group of Mallesons Stephen Jaques. In 2001 he joined the London office of Linklaters & Alliance as a member of its Intellectual Property, IT and Communications Group. Since being called to the Bar in 2003, Mr O'Sullivan has practised in the fields of commercial and corporate, banking and insolvency, competition and trade practices, intellectual property, aviation and professional negligence.
Kate Eastman
Kate Eastman AM SC is a barrister based in Sydney. Her practice at the Bar is in the areas of, employment, discrimination, sexual harassment and public law. Kate is the Chair of the Law Council of Australia’s Equal Opportunity Committee and the Australian Bar Association’s Diversity Committee.
Anthony Cheshire SC
Anthony was called to the English Bar in 1992 and practised at the bar in London before coming to Sydney in 2003. He practices from the 8th Floor Wentworth Chambers. He has a broad range of practice, in particular in the general commercial, corporations, insolvency, insurance, equity, probate and professional negligence fields. He has extensive experience in relation to the internal affairs of corporations and associations and has acted for a variety of commercial, sporting, recreational, religious, political and other bodies and their members. He has been a barrister for over 25 years and was appointed Senior Counsel in 2015.
Max Kimber SC
Max commenced as a practising barrister in 1979 after completing postgraduate studies in the USA on a Fulbright Scholarship. He was appointed Senior Counsel in 1999. The focus of his work as a barrister has been on the resolution of workplace issues and employment contract disputes via litigation in Federal and State courts; by conciliation or arbitration in Federal and State Industrial tribunals and via private negotiation and mediation. Following the training as a Mediator in 1992, Max has also developed a broad based practice in dispute resolution involving the mediation of contractual and other commercial disputes, will and estates, employment and personal injury matters – as well as the more informal ‘facilitation’ of an increasing array of disagreements and disputes between Board members, business/law firm partners, senior corporate executives and other independent professionals. Max has recently undertaken a number of complicated and highly sensitive workplace investigations for major publicly listed companies and for industrial organisations and facilitated several significant disputes I both the public and private hospital system in New South Wales. He has written and provided extensive training on effective communication, ADR and conflict resolution. He is a regular presenter at law firms and at mediation forums and he mentors new mediators. Max sees himself as a “resolutionary” – committed to prevention and early intervention strategies to minimise and deescalate conflict with a focus on fostering better communication and listening skills and on the utilisation of restorative processes.
The Hon. Justice Francois Kunc (TBC)
Francois Kunc SC was admitted as a solicitor in 1986 and after practising with Allen Allen & Hemsley was called to the Bar in 1992. He took silk in 2007 and is immediate past Chairman of Eleven Wentworth Chambers. Francois has a wide ranging commercial and equity practice and his clients include government, individuals and corporations. He appears regularly in State and Federal courts around Australia. He appeared for Paul Hogan in his dispute with the Australian Crime Commission and is currently retained by a member of the Rinehart family in litigation being heard by the Supreme Court of NSW.
Venue
Legalwise Seminars - Pitt Street
Level 11 70 Pitt Street
Sydney 2000 NSW
Australia
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Directions:
Nearby Public Transport:
Train Stations - Wynyard 400m OR Martin Place 500m
Bus Interchange - Clarence Street 450m
Ferry - Circular Quay 1.2km