University of Western Sydney Law Alumni Occasional Address: 8 November 2013, Doltone House, Sydney.

Author:Bathurst, T.F.
Position:Dispute resolution processes
 
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I INTRODUCTION

A few months ago, when I received a letter from the Dean of Law and the President of the Alumni Association inviting me to speak at this dinner, I accepted with delight. I then put the letter onto one of the piles of papers on my desk, where it vanished for some time. When I finally found it again recently, two things I read caused me to come to a sobering realisation.

The first was reading that the University of Western Sydney has been providing high quality legal education for almost 20 years. I, on the other hand, have been attempting to provide moderate quality legal advice for some 40 years.

The second was learning that 3,000 students have graduated from UWS' LLB Program in those 20 years. That, I realised, is more than three times the number of barristers who were practising when I first came to the bar.

The conclusion I was forced to draw from these matters is that I really am quite old. That is probably not a huge revelation to anyone here tonight, but it came as quite a shock to me. Previous comparisons with the rest of my judicial colleagues had led me to believe I was early middle aged.

Having got over that shock, I thought I might take advantage of the situation, and reflect tonight on what has changed over the years since I began practicing. What value, you may ask, could this have, except for allowing me to indulge in reflections of the past that are probably best kept to myself?

I don't know if you will find this a convincing answer, but to my mind considering what has changed over the last 40 years is relevant because it enables us, as a profession, to reflect, first, on how far we have come--both in providing legal services to the public, and in making legal practice more stimulating and interesting. Second, it allows us to identify changes to the legal landscape that have thrown up new challenges, and placed certain elements of professional life and dispute resolution under pressure--and perhaps even to suggest ways to meet those challenges.

Now rest assured, I'm not going to bore you by telling you how lucky you are to have graduated in the last twenty years on the one hand, or by talking endlessly about how good the good old days were on the other. Almost all members of the senior judiciary have had a go at the first type of speech, and no one would believe me if I began eulogising the past, least of all myself. Rather, I will try to simply reflect on some of the major changes of the last 40 years, and say a few words about the implications of some of those changes.

II SUBSTANTIVE LEGAL CHANGE

Can I start at the mundane level? When I first started practising law as an articled clerk, although it had been 67 years since Federation and 26 years since the Statute of Westminster Adoption Act 1942 (Cth), Australian courts were yet to declare their independence from the Privy Council and House of Lords. English law remained a towering influence on the development of Australian law. In fact, until the Australia Acts 1986 (Cth) were passed in 1986, litigants continued to take appeals to the Privy Council, including directly from State Supreme Courts. In that way parties by-passed the High Court when it seemed advantageous to do so, for example because an existing decision seemed to be against them. In fact, the 'increased availability of air travel meant that the Privy Council was probably hearing more Australian appeals in the 1970's than in the 1930's'. (1) Cynics often suggested, of course, that the reason for the continuing popularity of the Privy Council, particularly in the months between May and October, had something to do with barristers' holiday plans. Nothing could be further from the truth.

At the time I entered the legal profession, there was minimal statutory intervention in the common law, with the possible exception of the Criminal Law. There was for example, no such thing as the Trade Practice Act 1974 (Cth). The Corporations Act 2001 (Cth), then known as the Companies Act, contained some 60 sections, mainly dealing with issues of ultra vires, reductions in capital and the relationship between the company and its shareholders. There was no Evidence Act. In fact I vividly remember when the Evidence Act 1995 (NSW) came into force. I was appearing in Melbourne around the time, and in the course of argument I remarked to the judge 'now of course your Honour hasn't had the misfortune of dealing with the Evidence Act', to which his Honour replied, T was on the Commission that recommended that Act, Mr Bathurst'.

There was no Supreme Court Act 1970 (NSW), certainly no Uniform Rules of Civil Procedure. There was however a Common Law Procedure Act 1899 (NSW), carefully designed to trick people into commencing proceedings in the Equity as opposed to the Common Law division, at which point they were deemed non-suited and had to start again.

Rules of Pleading were fine in the extreme. At some point during my University career, I remember trying to memorise the 1845 edition of Bullen and Leake on Pleadings, to pass our pleadings exam. Yes, we had those. The exam was set by an extremely senior barrister who later went onto become a judge of the Supreme Court. He would generally start his lectures by waving a copy of Bullen and Leake around while proclaiming it 'the finest work of English literature known to history, save for King Lear and the King James Bible'. Each to their own I guess.

Much has changed since then. When I was preparing this speech I mentioned Bullen and Leake to my researcher, and she responded with the kind of dazed and confused stare more usually seen in clients emerging from a meeting with their tax accountant.

There have been other changes. Comprehensive...

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