Litigation Law Unit (LLU)
LLU fosters scholarship that enhances the administration of justice in established and emerging common and civil law systems of litigation.
- Introduction and Purpose
Litigation is the most visible area of law. It is critical to functional governance and public confidence in judicial administration and integrity. In Australia, litigation systems are inreasingly regarded as broken. The former Chief Justice, the Honourable John J Doyle AC QC, has variously described litigation in Australia as "flailing", dying of "neglect and decay", "strangling itself" and "in desperate need of repair". These are shared concerns of litigious systems across established civil democracies and serve as a warning for emerging and developing legal systems.
LLU considers meaningful litigation reform in Australia, and other nations, will best derive from an international and interdisciplinary approach.
Litigation reform is a global concern and affects a host of disciplines. Collaborative and cross-border sharing of knowledge and experience is needed. This enhances and advances the Australian litigation system and the systems of other countries.
LLU leads this reform strategy through its research centric Programs and Publications agenda.
LLU Programs and Publications comprise interdisciplinary research and international projects on the laws and processes of civil and criminal litigation in adversarial, inquisitorial and hybrid justice systems.
The Unit specialises in the fields of:
- Advocacy and Access to Justice
- Evidence and Procedure
- Criminal Justice
- Civil and Inquisitorial Law Systems
- International Litigation
- Appeal and Review
- Litigation History
These Specialisations draw on Researchers at Adelaide Law School and the University of Adelaide.
LLU brings these Researchers together with Partners from a multidisciplinary community of legal practice, psychology, forensics, science, economics, history, politics and cultural studies. Our Partners bring experience from Australia, India, China, Europe and the United States.
LLU fosters Postgraduate study in its fields.
The Chair of the Advisory Board of the Unit is the Honourable John J Doyle.
The Unit is supported by a team of Associates.
The Director of the Unit is David Caruso.
Enhance the administration of justice through critique and reform of domestic and international litigation systems.
Advance interdisciplinary strategies to litigation reform.
Establish research centric collaborations to develop and reform litigation systems.
- Terms of Reference
Within its Objectives, the LLU conducts and supports:
- International and national collaborations
- Interdisciplinary research
- Research grants
- Scholarship and postgraduate study
- Programs and conferences
- Visiting scholars
- Public debate and discussion
- Our People
- Patron and Chairman
- The Honourable Professor John Jeremy Doyle AC QC
- Advisory Board
- The Honourable Professor David Bleby QC
- The Honourable Michael David QC
- The Honourable Professor Robyn Layton AO QC
- Professor Martin Hinton QC, Solicitor-General for South Australia
- Mr Brian Hayes QC
- Mr Ian Robertson SC
- Ms Liesl Chapman SC
- Mr Samuel Doyle SC
- Emeritus Fellow Andrew Ligertwood
- Emeritus Fellow Ian Leader-Elliott
- Professor Gary Edmond
- Mr Nigel Wilson
- Ms Kerry Clark
- Mr Kris Handshin
- Professor John Williams (ex officio)
- Ms Charlotte Thomas
- Mr Jordan Phoustanis
- Ms Ashleigh Fitzgerald
- Visiting Scholars
- Media Managers
- Mr Sam Pickford
- Mr Samuel Mugford
- Patron and Chairman
- Normative Decision Structures of Forensic Interpretation in the Legal Process (NORMDECS) (Switzerland)
- International Association of Evidence Science (China)
- The Courts Administration Authority of South Australia (Australia)
- Collaborative Innovation Center of Judicial Civilization (EN)
- Institute of Evidence Law and Forensic Science
- Chinese University of Political Science and Law
Launch of the South Australian Chapter of the Chartered Institute of Arbitrators Limited (CIArb)
On 4 March 2015, LLU Director, David Caruso, and LLU Secretary, Charlotte Thomas, were invited to the re-launch of the South Australian Chapter of the Chartered Institute of Arbitrators hosted by the University of Adelaide Law School. The Litigation Law Unit provided logistical support to the launch including facilitating the recording of the keynote address delivered by Mr Neil Kaplan CBE QC SBS, which is available for download here: CIArb Launch – Kaplan Keynote
Mr Neil Kaplan CBE QC SBS is an eminent international arbitrator in the fields of commercial, infrastructural and treaty law. Mr Kaplan has been engaged for over 40 years in dispute resolution as a barrister in England, a government lawyer in Hong Kong, a practising Queen’s Counsel in Hong Kong, and a Judge of the Supreme Court of Hong Kong in charge of the Construction and Arbitration List. Since 1995, he has practised solely as an international arbitrator.
The Chartered Institute of Arbitrators has 13,000 members worldwide. It provides education, training and accreditation for arbitrators, mediators and adjudicators and the Australian branch offers its members a globally recognised qualification and access to an international professional community.
The LLU is pleased to support the re-launch of CIArb (South Australia), please visit the Chartered Institute of Arbitrators in Australia for more information.
Litigation Practice - Clinical Legal Education
The Litigation Law Unit is partnering with the Adelaide Law School Clinical Legal Education Program in two major projects in 2015.
The Clinical Legal Education program places final year law students for one semester in two free legal advice clinics run by the Law School, and other community legal services.
This year students in the program will be working on several major themes including:
- Research into the needs of Self Represented Litigants;
- Developing practical resources for Self Represented Litigants in South Australia;
- Engaging with the legal community to explore the impacts on justice access of unbundling legal advice services; and
- Evaluating the recommendations of the Productivity Commission’s Access to Justice Report (2014) with reference to needs of litigants in South Australia.
For more information, contact the Director of the Adelaide Law School Clinical Legal Education Program, Margaret Castles, or LLU Director, David Caruso.
5th International Conference on Evidence Law and Forensic Science, Adelaide, 20 - 23 July 2015
The Conference Proceedings will review and critique Contemporary Issues in Evidence Law and Forensic Science from the perspectives of Law, Forensic Science, Political Science and Cultural Study.
The Conference aims to Advance the Administration of Justice through a Comparative, Interdisciplinary and International Exchange
Executive Committee Professor Ronald J. Allen Professor Zhang Baosheng Mr David Caruso Emeritus Fellow Andrew Ligertwood Assistant Professor Zhuhao Wang Professor John Williams General Committee Mr Martin Hinton QC SG Professor Paul Babie Ms Liesl Chapman SC Professor Purnendra Jain Professor Clem Macintyre Mr Nigel Wilson Scientific Committee Professor Christophe Champod Professor Michele Taruffo Professor Paul Roberts Dr Chris Pearman Professor Gary Edmond Dr Carolyne Bird
FundingICELFS 2015 is supported by grant funding from the University of Adelaide, its hosts and a number of sponsors.
2nd Australia-India Advocacy and Litigation Conference, Delhi, January 2016 and Adelaide, February 2016
The 2nd AIALC builds on the success of the inaugural conference (the Australia-India Advocacy Conference, January 2013) and continues the collaboration and associations developed by the inaugural conference between legal practitioners and academics in India, New Delhi, and Australia, South Australia.
The 2nd AIALC Program has been extended to include greater focus on comparison of litigation reforms and procedures between Australian federal courts and Indian higher courts. The Program also includes analysis of the role of media in the administration of justice. This focus is the result of demand and discussion from the inaugural conference.
The 2nd AIALC focusses on capacity-building and knowledge exchange between Australia and India in the fields of advocacy and litigation practice and reform, with delegates of the conference to participate in both Australian and Indian hosted activities.
The 2nd AIALC will be convened over 7 days in late January and early February 2016, with 3 discrete Conference Modules:
- Module Topic 1: advocacy and litigation procedure in criminal cases of sexual assault (in New Delhi)
- Module Topic 2: resolving problems of “pendency” (delay) in the administration of civil and criminal justice in India and Australia, and the development of ADR (in New Delhi)
- Module Topic 3: direct and indirect social participation in the administration of justice, through media reporting of cases (indirect) and the jury system of criminal trial (direct) (in Adelaide)
Participation in the 2nd AIALC is by invitation and presenters are currently being confirmed.
Please return to this page for regular updates.
For enquiries, please contact David Caruso.
The Foundations of the Law of Evidence and their Implications for Developing Countries, Specialist Conference, Chicago, November 2014
This Specialist Conference focuses on the introduction and development of Evidence Codes in emerging and developing legal systems in China and Africa and the work and role of foreigners in this process.
LLU Director, David Caruso, is invited to moderate a Panel within the Conference concerning “Working in Foreign Lands”. The Panel comprises: Tom Geraghty, Kristin Stilt, Mahdi Naamneh and Juliet Sorenson.
The Conference is convened under the leadership of Professor Ronald J. Allen, the John Henry Wigmore Chair of Law, Northwestern University
All Courts Judicial Development Conference, Grange, South Australia, November 2014
LLU Director, David Caruso, is invited to present at the Judicial Development Conference for All Courts (Supreme, District and Magistrates) of South Australia.
The presentation will concern “Reforms and Future Directions for Criminal Law in South Australia”.
The presentation will be Chaired by His Honour Judge G. Barrett.
The Conference is convened and hosted by the Judicial Development Committee of South Australia and the Courts Administration Authority of South Australia
Magistrates Court of South Australia – Annual Conference, Hahndorf, South Australia, October 2014
LLU Director, David Caruso, is invited to present at the Annual Conference of the Magistrates Court of South Australia.
The half day session will concern “Developments and Updates in Evidence and Criminal Law” and will particularly focus on:
- discreditable conduct and bad character of a defendant,
- firearms offences, and
- suspended sentences.
The Secretary of the LLU, Charlotte Thomas, assisted in the preparation of materials for the half day session.
The Conference is convened and hosted by the Magistrates Court of South Australia and the Courts Administration Authority of South Australia
22nd ANZFSS International Symposium – Technology on Trial Panel, Adelaide, September 2014
LLU Advisory Board member, Ms Liesl Chapman SC, and Director, David Caruso, collaborated with the organisers of the 22nd Australia and New Zealand Forensic Science Society International Symposium on Forensic Sciences to accommodate the attendance of 50 Adelaide Law School undergraduates, studying expert evidence in South Australian and Federal law, at the Special Panel on “DNA: Technology on Trial”.
The Panel comprised Justice John Sulan, Michael Abbott AO QC, Ms Sandi McDonald SC, Ms Liesl Chapman SC, Dr Duncan Taylor, Dr Damien Abarno and Mr Sean Fewster.
The Panel afforded students a rare opportunity to gain insight into the evidential difficulties associated with reliance on new forensic technologies in criminal proceedings, through the reflections of the minds in the courtroom.
The LLU is grateful to the hosts, sponsors and organisers of the 22nd ANZFSS for the opportunity this Panel provided students of the Adelaide Law School.
Evidence and Law Reform Workshop – the New Evidence Code of China, Jilin, China, July 2014
LLU Advisory Board member, Emeritus Fellow Andrew Ligertwood, and Director, David Caruso, were invited to present at this Workshop for jurists and practitioners in China.
Ligertwood presented on “Forensic Science Expressions and Legal Proof”; Caruso presented on “The Admissibility and Use of Forensic Science Evidence in Australian Courts”
The Workshop was convened under the auspices of the Chinese Government “2011 Plan” and the Collaborative Innovation Centre of Judicial Civilization (CICJC) to review recent developments in Evidence Law within Chinese Courts that have derived from common law origins and perspectives.
The Workshop was convened by the Collaborative Innovation Centre of Judicial Civilization.
“Advocacy in Criminal Trials and Inquests” – LLU Seminar Series, Adelaide, October 2013
This second seminar in the series convened an Expert Panel on Proceedings in Criminal Trials and Inquests, comprising:
- The Deputy Premier and Attorney-General of South Australia, the Honourable John Rau MP
- His Honour Judge Wayne Chivell, District Court of South Australia
- Deputy Director of Public Prosecutions for South Australia, Ms Sandy McDonald SC
- Managing Partner of Tindall Gask Bentley, Mr Morry Bailes
The seminar provided an interactive format for Adelaide Law School undergraduate students and invited members of the South Australian Independent Bar.
The seminar was moderated by LLU Director, David Caruso.
“An Introduction to Advocacy and Life at the Bar” – LLU Seminar Series, Adelaide, March 2013
This inaugural seminar in the series saw LLU Associates, Ms Rebecca McEwen and Mr John Eldridge, interview the Honourable Kevin Duggan AM QC RFD about his Honour's life in the law and his advice to aspiring advocates before an invited audience of Adelaide Law School undergraduate students and members of the South Australian Independent Bar.
The seminar was chaired by the Patron and Chairman of the LLU, the Honourable John Doyle AC QC.
Melbourne University Law School Evidence and Procedure Workshop – Melbourne, February 2013
This Workshop was an initiative of Mr Andrew Roberts. The Workshop brought together academics across Australian Gof8 Universities working in the fields of evidence, procedure and advocacy.
LLU Advisory Board members, Emeritus Fellow Andrew Ligertwood and Professor Gary Edmond, and Director, David Caruso, participated in the Workshop.
Inaugural Australia-India Advocacy Conference, Delhi, January 2013
The AIAC was a two part course held in New Delhi, India over 15 to 19 January 2013 for students of the Delhi University Law Faculty and barristers of the Delhi Bar.
The AIAC was jointly supported by the South Australian Bar Association, Bar Council of Delhi, the University of Delhi Law Faculty and the LLU for and on behalf of Adelaide Law School.
The AIAC was partly funded by a grant from the Australia-India Council of the Australian Department of Foreign Affairs and Trade.The Australian delegation comprised:
- The Honourable Professor Robyn Layton AO QC
- His Honour Judge Steven Millsteed QC
- Mr Brian Hayes QC
- Mr Ian Robertson SC
- Emeritus Fellow Ian Leader-Elliott
- Mr Tim Preston
- Ms Noelle Hurley
- Ms Kerry Clark
- Mr Patrick Leader-Elliott
- Mr David Caruso
- Professor Ved Kumari
- Assistant Professor Dr L. Pushpa Kumar
- Dean of Law, Prefessor Gurdip Singh
- Senior Advocate, Mr Shyam Divan
- Special Guest, Justice Anil Kumar
- Special Guest, Senior Advocate, Mr Colin Gonsalves
David Caruso, Rhain Buth, Mary Heath, Ian Leader-Elliott, Patrick Leader-Elliott, Ngaire Naffine, David Plater and Kellie Toole, South Australian Criminal Law: Review and Critique (LexisNexis, Butterworths, Sydney, 2014)
South Australian Criminal Law: Review and Critique is the first critique text on South Australian criminal law and the first collaboration of its kind for the State, with the authorship team comprising the permanent academic faculty teaching criminal law in each of the three South Australian Law Schools.
LLU Director David Caruso, was the convening author and was assisted in editing and reviewing the work by then LLU Secretary, Ms Asta Hill, and LLU Associates, Mr Nicholas Crawford, Mr Dylan-James Fogagnolo and Mr Michael Armstrong. The authorship team was also supported by Mrs Kate Cashman, Mr Rhys Aston, Miss Joana Fuller, Mr Matthew Goode, Dr Colette Langos and Mr Jordan Tutton.
South Australian Criminal Law: Review and Critique was launched on 3 April 2014 at the Law Society of South Australia by the Chief Justice of South Australia, the Honourable Christopher J. Kourakis.
On the occasion of the launch, his Honour said: I congratulate the authors and all who assisted and facilitated this work. I commend the spirit of inter-varsity collegiality in which it was conceived and produced. This book will serve as a key receptacle of knowledge for students of criminal law, a useful reminder of fundamental principles for more experienced criminal law practitioners and a valuable resource which will inform the law’s further development.
The Honourable Justice Tom Gray, Martin Hinton QC and David Caruso (eds), Essays in Advocacy (Barr Smith Press, Adelaide, 2012)
Essays in Advocacy is an anthology on the art and science of advocacy.
More than 50 authors contribute to 50 chapters covering:
- Ethics, Duties and Obligations
- The Trial
- Alternatives to Trial
- Tribunals, Inquiries and Miscellaneous Hearings
- Sentencing and Remedies
- Applications for Judicial Review
- Proceedings in the High Court and Petitions
The Chief Justice of the High Court of Australia, the Honourable Robert S. French AC, notes in his Introduction to the work that “the range, diversity and depth of experience of the contributors whom Essays in Advocacy brought together is truly remarkable”.
Essays in Advocacy was launched on 18 May 2012 at the Offices of Fisher Jeffries Barristers and Solicitors by the Chief Justice of South Australia, the Honourable John Jeremy Doyle AC QC.
Distinguished students in the study of advocacy and evidence from each of the three South Australian Law Schools were recognised and awarded copies of the work at the launch by the Honourable Justice Jennifer Davies, then of the Supreme Court of Victoria, now a Justice of the Federal Court of Australia.
Purchase: Essays in Advocacy
‘Why Representation and Resources are Critical to Access to Justice in Minor Civil Jurisdictions: the Experience of Advisory Services in Minor Civil Claims’
Authors: Ms Margaret Castles, Mr David Caruso, Associate Professor Anne Hewitt
Status: (2014) 8 University of New South Wales Court of Conscience Journal 25
Abstract: This article argues that appropriate involvement of the legal profession in minor civil proceedings, rather than its exclusion, will best facilitate efficient proceedings and ensure rectitude of outcome. We recommend that initiatives are implemented to:
- ensure that legal advice is more accessible to parties;
- provide more targeted, matter specific advice regarding the utility, process and benefits of ADR to individuals involved in litigation;
- facilitate the provision of unbundled legal advice on an ‘as needs’ basis.
‘Rethinking Leading Questioning: the Directive/Non-Directive Psychological Divide’
Authors: Mr David Caruso, Dr Jacqueline Wheatcroft and Mr James Krumrey-Quinn
Status: Forthcoming: Criminal Law Review, 2015
Abstract: There is a dearth of legal and psychological consideration of the leading question during the trial process. This article argues the current approach to the leading question does not assist or promote the accuracy of witness evidence, particularly witnesses likely to be affected by such questions: children. We advance a revised definition of leading, differentiating between directive and non-directive questions. Directive questioning is the primary mischief to eliciting accurate witness testimony; we propose its presumptive prohibition. Non-directive leading is of less concern and should be the leading form open to use in cross-examination.
‘The Executive Institution of Mercy in Australia: The Case and Model for Reform’
Authors: Mr David Caruso and Mr Nicholas Crawford
Status: (2014) 37(1) University of New South Wales Law Journal 312
Abstract: Post-conviction review procedures in Australia have been static despite significant reform in other Commonwealth countries. Responsibility for review and the powers to do so, collectively, the ‘Institution of Mercy’ (‘IOM’), are vested in the executive of each Australian jurisdiction. We argue that the executive should not have those powers or responsibilities. To vest the executive with those powers ignores international reform, the history and development of the powers and, most importantly, is contrary to fundamental principles of a constitutional democracy. We consider recent reforms in South Australia are a model worthy of consideration by other Australian and common law jurisdictions.
‘The Case in Australia for Further Reform to the Cross-Examination and Court Management of Child Witnesses’
Authors: Mr David Caruso and Mr Timothy Cross
Status: (2012) 16(4) International Journal of Evidence and Proof 364
Abstract: Recent legislative reforms in Australia designed to address the difficulties attending the reception and treatment of child evidence will have little, if any, success because they do not address the reasons for the difficulties, nor introduce improvements to existing practice for the child witness, counsel or court.
‘The Basis of the “Basis Rule”: the Role of the Basis Rule in the Admissibility of Expert Opinion’
Authors: Mr David Caruso and Mr Trang Phan
Status: Forthcoming: Federal Law Review, 2015
Abstract: The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.
‘The “Authorities Proviso”: the Scope of the Discretion to Exclude Evidence for Public Policy’
Authors: Mr David Caruso and Mr Chong Tsang
Abstract: This article addresses whether the discretion to exclude evidence on the grounds of public policy as formulated in Bunning v Cross should be limited to situations in which the improper or unlawful conduct in obtaining the evidence was that of ‘the authorities’.
‘Why Witnesses Do Not Testify in Chinese Criminal Trials’
Authors: Assistant Professor Zhuhao Wang and Mr David Caruso
Status: Publication Pending
Abstract: Having witnesses testify at trial is a fundamental component of any modern judicial system. In criminal litigation, witness examination in the courtroom is a principal method of fact-finding. Even though Chinese laws and regulations, particularly the Chinese Criminal Procedure Law, stipulate a witness' general responsibility to testify at trial and corresponding supporting measures to facilitate this, the reality is that the appearance rate of witnesses testifying at criminal trials in China has been and remains extremely low. It is commonplace for witness testimony to be confined to the tender of statements made to police or to prosecutors during pre-trial stages. This is detrimental to due process and puts China’s aims at judicial reform in jeopardy. In this article, the authors review the results of pilot programs across ten Chinese courts aimed at bringing witnesses to court to giver oral evidence. We identify eight reasons why Chinese witnesses do not attend court to give oral evidence and discuss approaches that may change this culture.
Submissions and Reports
Litigation Funding, submission to the Productivity Commission, Access to Justice Arrangements Issues Paper, 4 November 2013
Authors: Dr Suzanne Le Mire and Mr David Caruso
Access to Justice in Minor Civil Jurisdictions, submission to the Productivity Commission, Access to Justice Arrangements Issues Paper, 31 October 2013
Authors: Ms Margaret Castles, Mr David Caruso, Associate Professor Anne Hewitt
Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), submission to the Sentencing Advisory Council, Discussion Paper Considering the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA), 10 October 2013
Authors: Ms Kellie Toole, Professor Ngaire Naffine, Ms Margaret Castles and Mr David Caruso