Journal of Civil Litigation and Practice (JCivLP)
Vital reading for all civil dispute practitioners
About the Journal
The Journal of Civil Litigation and Practice (ISSN: 1839-4574) is vital reading for all civil dispute practitioners and scholars. It brings together the many and varied issues encountered in practice, procedure and litigation, which cannot currently be found in a centralised resource.
Under the leadership of General Editor Roderick Joyce QSO QC and Professor Michael Legg, this quarterly journal will address civil litigation and practice issues. Each issue will comprise editorials, articles and case notes, comments and/or book reviews on a wide range of topics. Its Editorial Board comprises practitioners and experts from around Australia as well as from the United Kingdom, Canada and New Zealand.
Roderick (Rod) Joyce QSO QC commenced practice as a barrister sole in 1975 and was appointed Queen’s Counsel in 1985. He served as Judge of the District Courts of New Zealand from 1993 to 2014, and was a member of the New Zealand Rules Committee between 2002 and 2011. Rod is currently a Delegate of the Legal Complaints Review Office of the New Zealand Ministry of Justice, an Academic Fellow at the Faculty of Law of the University of Auckland, and a Continuing Legal Education instructor at the New Zealand Law Society. He is also General Editor of Thomson Reuters New Zealand product: Civil Procedure: District Courts and Tribunals. Before his service as a judge, Rod appeared in a wide range of civil and criminal cases at all court levels in New Zealand, as well as before the Privy Council in London prior to the establishment of the New Zealand Supreme Court. He has been actively involved in legal education for the last 20 years. In 2013, he was made a Companion of the Queen’s Service Order for services to the judiciary.
Michael Legg is a Professor at UNSW Law. He specialises in complex civil litigation, including regulatory litigation and class actions. He has written extensively on civil procedure and class actions. He holds law degrees from UNSW and the University of California, Berkeley and is admitted to practice in Australia (NSW) and the United States (New York Bar). Michael is a member of the Law Council of Australia’s Class Actions Committee.
Dr James Metzger
Dr Genevieve Grant
Case Notes Editor
Louise Beange, Solicitor
Court Watch Editor
Dr Bernard Cairns, Adjunct Associate Professor of Law, University of Tasmania
John Emmerig, Partner, Jones Day
Australian Capital Territory
Professor Peta Spender, Professor of Law, Australian National University; Presidential Member, ACT Civil and Administrative Tribunal (ACTCAT)
New South Wales
Professor Michael Legg, Faculty of Law, University of New South Wales
Professor Bobette Wolski, Associate Professor of Law, Bond University
Edward Stratton-Smith, Barrister, South Australian Bar
Chris Gunson, Barrister, Tasmanian Bar
Katja Levy, Special Counsel, Squire Patton Boggs; Barrister, Western Australian Bar
Professor Trevor Farrow, Professor, Osgoode Hall Law School, Toronto, Canada; Director of Clinical Legal Education, Osgoode Hall Law School, Toronto, Canada; Chair, Canadian Forum on Civil Justice
Roderick Joyce QSO QC,Legal Complaints Review Office Delegate, New Zealand Ministry of Justice; Honorary Academic Fellow, University of Auckland, Faculty of Law; Continuing Legal Education Instructor, New Zealand Law Society.
William Fotherby, Associate, Dechert LLP; Barrister and Solicitor, New Zealand Bar
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For the individual contents pages for each Part, click here.
This issue of the Journal of Civil Litigation and Practice is a Special Issue focused on “Civil Justice”. Containing a collection of articles presented at the Civil Justice Forum held at RMIT University on 13 and 14 February 2018, this issue covers the following: “Suppression and Non-publication Orders in Civil Litigation” – BC Cairns; “Pre-action Requirements in Medical Negligence Matters” – Tania Sourdin, Margaret Castles and Madeline Muddle; “Could Civil Case Management Benefit from a Litigant Vulnerability Assessment Scheme?” – Sonya Willis; and “Processes for Disputing Liability to Pay Workers’ Compensation for Psychological Injury” – Olivia Rundle, Megan Woods and Laura Michaelson. Also in this part is the Editorial Comment and the following Case Notes: “ARB – MED – ARB: Ku-Ring-Gai Council v Ichor Constructions Pty Ltd  NSWSC 610” – Brigitte Gasson; and “Rozenblit v Vainer (2018) 92 ALJR 600;  HCA 23: Order for Stay of Proceedings in the Case of the Impecunious Plaintiff” – Ella Howard.
This issue of the Journal of Civil Litigation and Practice is a Special Issue focused on “Class Actions”. Against the backdrop of the ALRC and VLRC inquiries into class actions and litigation funding currently underway, this very timely issue covers the following articles: “Class Actions: Historical Highlights” – John Basten; “Class Action Commencement in Australia: A Practical Approach” – Nick Beaumont SC; “The Use and Abuse of Security for Costs in Class Actions” – Peter Cashman; “Competing Class Actions: A Suggested Solution through Certification” – Michael Legg; and “Cost Effectiveness and Case Management in Class Action Settlements” – Samuel J Hickey and Michael Legg.
Thomson Reuters is extremely pleased to announce that Professor Michael Legg has joined the Journal of Civil Litigation and Practice as its new Co-General Editor, working alongside the current General Editor Roderick Joyce QSO QC. A Professor of Law at UNSW Sydney, Michael is the Director of the IMF Bentham Class Actions Research Initiative at UNSW Law, and Director of the Law Society of NSW Future of Law and Innovation in the Profession (FLIP) research stream in the Allens Hub for Technology, Law and Innovation at UNSW Law, having played a key role as the academic committee member on the ground-breaking FLIP Report launched by the Law Society of New South Wales in March 2017. The Journals Team warmly welcomes Professor Legg to the Journal looks forward to his insights and ideas in helping readers to navigate the current and future landscape of civil litigation and procedure in Australia and beyond.
The latest Part of the Journal of Civil Litigation and Practice includes the following articles: “Comparison of the Law Concerning Implied Terms of Good Faith in Australia and in England” – Lara Jane Piercy; “Exceptions to the ‘Inglis Price’: In Practice” – Katja Levy and Richard Douglas; and “Caution: Tweet at Your Own Risk – Social Media and the Australian Legal Profession” – Marilyn Bromberg and Andrew Ekert. Also in this Part is the editorial Comment and the following section: Case notes: “Abuse of Process Following Discontinued Proceedings: Tyne (Trustee) v UBS AG (No 2) (2017) 250 FCR 341; 341 ALR 415;  FCAFC 5” – Louise Beange; “Virk Pty Ltd (In Liq) v YUM! Restaurants Australia Pty Ltd: Good Faith, Reasonableness and Unconscionability in Franchise Agreements” – Nick Christiansen and Jia Lee; and “Worldwide Interlocutory Orders Against Foreign Defendants Who Elect Not to Appear: X v Twitter Inc  NSWSC 1300” – Annabel Clemens.
The latest Part of the Journal of Civil Litigation and Practice includes the following articles: “Litigation in the South Australian Fast Track Streams” – Jordan Tutton; “Bikies, Brothels and Big Insurers: The Stealth Litigation and its Ramifications” – Nicholas Saady and Nicholas Olson; and “Meaningful Access to Justice for Everyday Legal Problems: New Research on Consumer Problems Among Canadians” – Lesley Jacobs and Matt McManus. Also in this Part is the editorial Comment and the following sections: Court watch: “Abuse of Process” – Bernard Cairns; and Case notes: “Internet Exceptionalism in Canada – Equustek and Globe24h.com” – Judge David Harvey. There is also a book review on “Advocacy and Judging: Selected Papers of Murray Gleeson” by Roderick Joyce QSO QC.
The latest Part of the Journal of Civil Litigation and Practice includes the following articles: “The Alluring Promises of Technology-assisted Review” – Elijah Pear. Also in this Part are the editorial Comments on “New Zealand Lawyer-Litigants to be Treated Regarding Costs Just Like Other Unrepresented Litigants” and “Miiko Kumar: General Editor”; and Case Notes.
The latest Part of the Journal of Civil Litigation and Practice includes a new series of articles: “Selected blogs: The Trump litigation” based on the edited blogs of the jurist, Sir Henry Brooke CMG PC, retired Vice-President of the Civil Division of the Court of Appeal of England and Wales. This Part also includes the following articles: “Restraining a lawyer from acting in aid of the administration of justice – exceptional circumstances and caution prevail” – Ian Dallen; and “The role of judges in a representative democracy” – Lord Mance. Also in this Part is the editorial Comment and the following sections: Case note: The RBS Rights Issue Litigation  WLR (D) 657;  EWHC 3161 (Ch) – by William Fotherby.
The latest Part of the Journal of Civil Litigation and Practice includes a Tribute to the Founding Editor of the Journal, Dr Damien Cremean, marking his retirement from the Journal. This Part also includes the following article: “When does a consent order operate as or evidence a contract?” – Alexander Sloan. Also in this Part are Editorial Comments and Case Notes.
The latest Part of the Journal of Civil Litigation and Practice includes the following articles: “Three contemporary issues in civil litigation: Discovery, expert evidence, and alternative dispute resolution” – The Honourable Thomas Frederick Bathurst AC; “Civil justice: Haves, have-nots and what to do about them” – Justice Stephen Kós; and “Disaster & resilience: The Canterbury earthquakes and their legal aftermath” – Justice Stephen Kós. Also in this Part are the editorial Comments on “Experts and Opinion Evidence” – Damien J Cremean; and “A Question of Malice: United Kingdom Supreme Court Justices Split 5-4 in Willers v Joyce (Executors of Albert Gubay Deceased)  UKSC 43” – Roderick Joyce.
The latest Part of the Journal of Civil Litigation and Practice includes the following articles: “From Susskind to Briggs: Online court approaches” – David Harvey; “Validity of asymmetric jurisdiction agreements in England, Australia and New Zealand” – David Birch; and “Mediator standards of conduct: A commentary to the revised National Mediator Accreditation System Practice Standards” – Bobette Wolski. Also in this Part are the editorial Comments and the following sections: Case notes: Aircraft Support Industries Pty Ltd v William Hare UAE LLC (2015) 298 FLR 183;  NSWCA 229 – by James Argent; and Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 90 ALJR 228;  HCA 43 – by Domenic Cucinotta and James Argent.