The Thomson Reuters Guide to Mooting [1 ed.] 9780455230825, 045523082X

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THOMSON REUTERS' GUIDE TO MOOTING

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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Thomson Reuters' Guide to Mooting

Professor Anthony E Cassimatis Associate Professor Peter Billings

Contributions by

Professor Gabriël Moens Professor Sarah Derrington with

Samuel Walpole

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Cassimatis, Anthony, 1965– Billings, Peter William, 1973– Thomson Reuters guide to mooting Includes index. ISBN 9780455230825 (pbk.) Moot courts—Australia Mock trials. 340.0711 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Michelle Smith Product Developer: Elizabeth Gandy Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

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FOREWORD The Honourable Michael Kirby AC CMG* Mooting is undergoing a great revival in Australian legal education. Australian mooting teams have repeatedly performed with outstanding results in the major international mooting competitions. They bring skills in the deployment of English, as native speakers of this dominant world language of law and commerce. They exhibit discipline, encouraged by ambition and insightful coaching by dedicated academic talent. They retain a tiny part of the enthusiasm and humour that earlier marked antipodean soldiers in even more deadly conflicts. And they are buoyed on by the winning instinct that is a characteristic of our sporting champions. This book has been written by outstanding Australian academic lawyers, who have played leading parts in coaching and encouraging winning international mooting teams. Professor Anthony Cassimatis and Associate Professor Peter Billings have well deserved reputations in coaching teams that have gone on to success internationally and in mooting competitions at home. Professor Sarah Derrington, who has contributed a chapter on international maritime law mooting, is now head of the T.C. Beirne School of Law at the University of Queensland. Professor Gabriël Moens has coached two world championship Vis mooting teams. Anthony Cassimatis had two world championship teams in the most taxing Phillip Jessup Mooting Competition. One could hardly assemble more expert authors. Local and international Australian mooting teams will be anxious lest they give away the secrets that have so often been crowned with success. In the earliest days of the English legal system, from which the adversarial legal tradition observed by a third of humanity was ultimately derived, mooting was an essential feature of training at the London and Dublin Bars. As the authors point out, at the advent of university law schools in the 19th century, this aspect of legal education began to fade. It was replaced with scholarly analysis of law by full time academics. Basically, this was a feature of legal education in the middle of the 20th century, when I arrived at law school in the University of Sydney. There was a very small mooting program. It was

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Foreword

arranged on an ad hoc basis by the student law society. Weary state Supreme Court judges would do their duty and preside over an occasional student moot. My one and only moot was before Mr Justice B.P. Macfarlan OBE, Judge of the Commercial Court. It explored the law of consideration in the topic of contracts. I had to address the judge in the ornate surrounds of the old Supreme Court building in Sydney. Fortunately, he was gentle and kind. As I was to discover soon in the real world, judges were not always of this disposition. The revival of mooting, as an important part of the law school curriculum, took off soon after my encounter, in law schools in the United States of America. It was from there too that international and transborder mooting competitions gained popularity. Academic faculties were, at first, luke-warm to the revival, both in England and Australasia. However, mooting competitions became extremely popular with antipodean law school students. They liked the competitiveness and the thrill of the chase. Moreover, they soon demonstrated the talent that would bring success and praise. Advocacy brought experience. Persuading another human being can provide a rush of adrenalin that remains in the mind to sustain the advocate even on less fortunate days when success is a distant prospect and failure looms like the iceberg before The Titanic. Having commenced this book with an historical introduction reaching back to Cicero, the authors proceed through the basic requirements for successful mooting. They examine the strategies that are needed for good argumentation in superior (and often appellate) courts. They emphasise the importance of selectivity in argument; strategic awareness of responses on the part of the decision-makers; and good team work. The book then proceeds through descriptions of some of the major mooting competitions that contemporary Australians will face: before the federal Administrative Appeals Tribunal; in the field of maritime law; in the Willem C. Vis International Commercial Arbitration Moot and in the Jessup International Law Moot. These descriptive chapters will be essential reading for all those students who decide to pursue the prize of an enjoyable mooting experience. Lingering questions remain in consequence of the abandonment of mooting by accomplished academics in England and Australia in the 19th and early 20th centuries. Why did it fall out of favour? What were the reasons for the scepticism and do they have any lessons for today?

Foreword vii

In part, the explanation was probably the heavy burden of instruction in a large list of subjects of substantive law that dominated legal education at the time. Now, in Australia, the list of compulsory subjects has been pared down to the Priestley Eleven. But even today many critics (myself included) lament omission of instruction in jurisprudence or legal values and legal history. For some it is astonishing that lawyers of the future can be trained without these basic elements. In a choice between compulsory instruction in them and mooting, some will feel that the wrong choice has been made. Additionally, both in academic and professional circles, mooting in law schools in Australia has attracted critics who doubt the wisdom of the emphasis it now attracts: • Mooting, especially international mooting, is seen by some as highly artificial, lacking the realism, intensity and unpredictability of the daily life of the ordinary advocate before courts and tribunals much more humble than the International Court of Justice; • For others mooting is essentially unnecessary for the future professional experience of the vast majority of law students who never intend to be advocates and who find the process, as I at least did, extremely stressful and immaterial to their actual professional intentions at the time; • For others, mooting, with its high emphasis on winning, is seen as a partial explanation of the increasing stress that exists in law schools today with major problems of depression and possibly low self-worth and suicide that are more common in law schools than other branches of university education; and • If mooting should have a place in legal education, still others feel that the emphasis should be in cases before magistrates, or refugee tribunals or mental health tribunals. These rather than moving from one side to another in well-worn arguments before the World Court might be a better place to start an encounter with the realities. Of course, for all of these criticisms, there are answers. Those of high student talent select mooting as a worthwhile law school experience. Those who participate rejoice in the encounters. Friendships are made that last forever. In international moots, cross cultural experiences are mutually beneficial. Russian mooters see for the first time the range of

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Foreword

legal authority taught in those from neighbouring vision is shared of the independent, professional

Western law schools. Asian mooters meet countries of Australasia and the Pacific. A necessity and desirability of uncorrupted, judges and decision-makers.

In mooting, as the authors point out, many think that the main point is winning. But it is not the main point. The main point is to enjoy and learn from a valuable experience, and to be reinforced at the outset of the legal journey in an appreciation of the rule of law, resting on the integrity of legal institutions and the commitment of impartial decision-makers. As each generation of lawyers moves through the life cycle, encountering these experiences, at least to some degree, is beneficial and occasionally inspiring. To all who will use this book, and to all who will play a part in persuasion and advocacy, I extend felicitations. To those who take part in mooting and feel that their skills in law lie in directions other than advocacy, take heart, the law is generous and has many avenues to help people in difficulty. There are plenty of fine lawyers who are not great advocates. And to the authors, appreciation and praise. Michael Kirby 24 July 2016

*Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984-96); Judge of the Federal Court of Australia (1983-84); Deputy President of the Australian Conciliation and Arbitration Commission and Chairman of the Australian Law Reform Commission (1975-84).

ACKNOWLEDGEMENTS We would like to acknowledge the inspiration we have received from all of the past and present students who we have had the honour to supervise and support within mooting competitions and more broadly in the mooting program within the TC Beirne School Law at the University of Queensland, and the support we have received from the many expert and extraordinarily generous moot judges who have taught students (and us) so much about the law and legal advocacy. Anthony Cassimatis would like to specifically acknowledge and thank Dr Kylie Weston-Scheuber, Dr Daniel Clarry, Dr Jessica Howley, Ms Catherine Drummond and Mr Hugo Clark-Ryan, who Anthony has been privileged to serve with in coaching Jessup moot teams; Mr Tom Fletcher, Mr Stephen Knight, Mr Michael Hodge, Dr Ryan Goss, Mr Chris Peters, Ms Tamerlan van Alphen, Professor Jon Crowe, Dr Rachel Baird, Mr Joe Siracusa, Mr Josh McGeechan and Ms Camille Boileau, who have coached and assisted many Jessup moot teams both in Australia and in the US; and the many generous financial donors, especially Mr John Story AO, who, by their generous support, have allowed many students (and academic staff) to experience the benefits of mooting at the very highest levels. Anthony would like to specifically acknowledge the inspiration he has received from distinguished international lawyers in Australia; Professor Ivan Shearer, who established the Jessup moot competition in Australia and has taught and inspired generations of international lawyers, and Professor Don Rothwell, who has given an immense amount to the Jessup moot competition in Australia, both as a coach and as a long serving national administrator. Anthony would also like to specifically acknowledge and thank Ms Catherine Drummond who coached Jessup moot teams in 2012-2014 and 2016, including two Australian champion Jessup moot teams and one world championship team and recipient of the Richard R Baxter Award for the world’s best applicant written submission in 2014 (students at the University of Queensland having also won this global research award in 2004); Ms Camille Boileau (a member of the 2014 world championship team and herself a former Jessup moot coach), who provided valuable comments on drafts of Chapters 1, 2 and 7; and

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Mr Russell Hinchy and Dr Francesca Bartlett, who respectively provided assistance on issues of precedent and the ethical duties of advocates. Peter Billings would like to acknowledge and thank all those members of the AAT at the Brisbane Registry, and across Australia, who have provided generous support to the mooting and negotiation competitions respectively. In particular, Mr Philip Hack SC, Deputy President of the AAT between 2005 and 2015, and Deputy President Bernard McCabe who have both inspired many law students at UQ with their helpful substantive advice about merits review and constructive feedback on aspects of written and oral advocacy. Additionally, thanks must go to the current and past President of the AAT, respectively the Honourable Justice Duncan Kerr and the Honourable Garry Downes, for so strongly supporting the competitions offered by the AAT. Thanks must also go to Mr Justin Toohey, Director of ADR at the AAT, for initiating the “noot” competition in 2014. Peter would like to express his gratitude to members of the legal profession, legal academy and past and present law students who have generously given their time to support UQ’s teams prepare for the moot and noot competitions, including; Peter Jensen, Margaret Carstairs, Assistant Professor Narelle Bedford, Professor John Devereux, Russell Hinchy, and Kathryn McMillan QC. Peter would like to recognise and signal his appreciation of the diligence and application of all the UQ law students who have so ably mooted (and nooted) since 2008, and to specifically acknowledge those students whose talents have been recognised by the AAT in the course of winning the moot competition, namely: Stewart Webster, Dominic Mayo and Gerowyn Lyons (2008), Mitchell Beebe, Abraham O’Neil and Hannah McConnachie (2011), Aanand Jayachandran, Heath Manning and Portia Tyle (2012); and, Eloise Gluer, Erin Gourlay and Nathan Lindsay (2014). Additionally, Rebekah Oldfield and Briony O’Driscoll won the inaugural noot competition (2014). Also noteworthy are Elizabeth Stanley, Georgia Williams and Jessica Apel (2013, moot finalists) and Jack Siebert and Hannah McAlister (noot finalists, 2015).

Acknowledgements

xi

Gabriël Moens wishes to thank all members of his Willem C. Vis teams who, since 1994, have represented the TC Beirne School of Law of the University of Queensland in the Annual Willem C Vis International Commercial Arbitration Moot. Their dedication, perseverance and relentless pursuit of excellence made it possible to compete with the best legal advocates in the world and succeed in this prestigious competition. It is pleasing to know that many team members have become prominent arbitrators and successful commercial lawyers. Sarah Derrington would like to acknowledge and thank Mr Samuel Walpole, a former competitor in the International Maritime Law Arbitration Moot, who co-authored Chapter 6. ANTHONY CASSIMATIS and PETER BILLINGS Brisbane August 2016

xii Acknowledgements

Notes on Contributors Associate Professor Peter Billings, of the TC Beirne School of Law, The University of Queensland, specializes in Administrative Law, Refugee Law and aspects of Social Security Law. He has supervised teams from the University of Queensland (UQ) competing in the National Administrative Appeals Tribunal Mooting Competition since 2008. UQ has won the competition on four occasions and been runner-up once over the past eight years. Peter also supervises students in the ‘NOOT’ - Negotiating Outcomes on Time - competition which the AAT co-ordinates. UQ won the inaugural competition in 2014 and were runners-up in 2015. Professor Anthony E. Cassimatis, also of the TC Beirne School of Law, specialises in Public International Law and Administrative Law. He began supervising UQ teams competing in the Philip C Jessup International Law Moot Court Competition in 1996 and teams he has guided in this competition have won the Australian regional rounds of the competition (2005, 2012 and 2014), the world championship rounds (2005 and 2014) and the Richard R Baxter Award for best research in the global competition (2004 and 2014). He has judged in the Australian regional rounds of the Jessup moot competition, has administered the Australian regional rounds and has judged in the international finals of the Jessup moot competition in Washington DC (including a quarter-final in 2015 and a semi-final in 2016). Professor Sarah Derrington is the Academic Dean and Head of School at the TC Beirne School of Law, The University of Queensland. She specializes in Carriage of Goods By Sea, Admiralty Law and Marine Insurance. Sarah has supervised students participating in the International Maritime Law Arbitration Moot for nearly two decades with great success, most recently coaching the UQ team to victory in 2013 in the United Kingdom, and coaching teams to the semi-finals in 2014, 2015 and 2016 respectively. Professor Gabriël A. Moens is Emeritus Professor of Law, The University of Queensland. In 1997 and 2000 he successfully coached the TC Beirne School of Law (The University of Queensland) team to win the prestigious Willem C. Vis International Commercial Arbitration Moot in Vienna, Austria. He also co-coached the winning City University of Hong Kong team in the Ninth Willem C. Vis (East) Moot in 2012 and the 20th Willem C. Vis Moot in Vienna in 2013. He is a Fellow (FCIArb) and Chartered Arbitrator (CArb) of the Chartered Institute of Arbitrators, London and Fellow and Deputy Secretary General of the Australian Centre for International Commercial Arbitration (ACICA).

Acknowledgements

xiii

Gabriël serves as the Editor-in-Chief of the ACICA Review and is the co-author of a Commentary on the ACICA Arbitration Rules. Samuel Walpole is currently an Associate to Justice Philippides on the Queensland Court of Appeal. He previously worked as Student Editor of the Australian and New Zealand Maritime Law Journal and as a Research Assistant in maritime law and the law of obligations. Sam was a member of UQ’s semi-finalist team in the 2014 International Maritime Law Arbitration Moot, where he was also awarded the Ron Salter Award for Best Speaker in the Final Rounds.

TABLE OF CONTENTS Foreword ............................................................................................... v Acknowledgements ............................................................................... ix Notes on Contributors ........................................................................ xii Table of Cases .................................................................................. xvii Table of Statutes ................................................................................ xix Chapter 1: Introduction to Mooting and Legal Advocacy Anthony E. Cassimatis and Peter Billings ................................... 1 Chapter 2: Appellate Advocacy Anthony E. Cassimatis ................................................................ 25 Chapter 3: Merits Review, ADR and “New Advocacy” Peter Billings .............................................................................. 45 Chapter 4: Advocacy before the Administrative Appeals Tribunal Peter Billings .............................................................................. 77 Chapter 5: The Willem C. Vis International Commercial Arbitration Moot Gabriël A. Moens ...................................................................... 107 Chapter 6: The International Maritime Law Arbitration Moot Sarah Derrington and Samuel Walpole ................................... 145 Chapter 7: The Philip C. Jessup International Law Moot Anthony E. Cassimatis .............................................................. 173 Index ................................................................................................. 189

TABLE OF CASES AP Energy Investments Ltd v Federal Commissioner of Taxation, Re [2013] AATA 626 ..................................................................... 4.30, 4.90 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86; 75 ALR 353; 10 IPR 153 ........................ 3.110 Briginshaw v Briginshaw (1938) 60 CLR 336 ........................................... 4.35 Browne v Dunn (1893) 6 R 67 .................................................................... 4.30 Bushell v Repatriation Commission (1992) 175 CLR 408 ......................... 4.40 Calvista Australia Pty Ltd v Administrative Appeals Tribunal (2013) 216 FCR 32; 61 AAR 39; 137 ALD 53; 304 ALR 489 ........................................................................................... 4.30 Casey v Repatriation Commission (1995) 60 FCR 510; 22 AAR 234; 39 ALD 34 ...................................................................................... 4.30 Commonwealth v Scott (1979) 41 FLR 405; 1 CCD 119 .......................... 4.60 Confidential and Commissioner of Taxation (2013) 16 AAR 293; 135 ALD 609; [2013] AATA 382 ........................................................... 4.40 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 ............................................. 4.50, 4.60 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107 ................................................. 2.30 Fox v Percy (2003) 214 CLR 118; 77 ALJR 989; 197 ALR 201 .............. 4.30 Greenham and Minister for Capital Territory, Re (1979) 2 ALD 137 ......................................................................... 4.50, 4.60 Hennessy and Secretary, Department of Social Security, Re (1985) 7 ALN N113 ................................................................................ 3.30 Holbrook and Australian Postal Commission, Re (1983) 5 ALN N35 .................................................................................. 4.35 Hughes Aircraft Systems International v Airservices Australia [No 3] (1997) 76 FCR 151; 146 ALR 1; [1997] ATPR (Digest) 46–178 .............................................................. 3.110 Immigration and Citizenship, Minister for v Li (2014) 249 CLR 332; 139 ALD 181; 297 ALR 225; 87 ALJR 618 ................................. 4.40 Immigration and Ethnic Affairs, Minister for v Pochi (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139 ......................................................... 4.30 Immigration and Ethnic Affairs, Minister for v Wu Shan Liang (1996) 185 CLR 259; 70 ALJR 568; 136 ALR 481 ............................. 4.35 Immigration and Multicultural Affairs, Minister for, Ex Parte Applicant S154/2002, Re (2003) 77 ALJR 1909; 201 ALR 437; 75 ALD 1 ........................................................................................ 4.30 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] 128 ALD 489 ............................................................. 4.85 Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 36 FLR 482; 26 ALR 247; 2 ALD 33 ....................................... 4.30

xviii Table of Cases

Pouki and Australian Telecommunications Commission, Re (1984) 6 ALD 324 ................................................................................... 4.30 Raja v Van Hoogstraaten [2008] All ER (D) 180 (Dec); [2009] 1 WLR 1143 ............................................................................................ 4.60 Repatriation Commission and Delkou [No 2], Re (1986) 9 ALD 358 ................................................................................... 4.40 Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993; 3 WLR 1666 ............................................................................................ 2.40 Shi v Migration Agents Registration Authority (MARA) (2008) 235 CLR 286; 82 ALJR 1147; 390 ALR 422 ........................................ 3.30 Sullivan v Civil Aviation Safety Authority (CASA) (2014) 226 FCR 555 ...................................................................... 4.30, 4.35 Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 ............................................................................................... 4.40 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 .......................................................................... 4.35, 4.40 Taxation (Cth), Commissioner of v Salenger (1988) 19 FCR 378; 81 ALR 25 ...................................................................................... 4.60 Taxpayer, The, and Commissioner of Taxation, Re (2006) 62 ATR 1280; 43 AAR 303; 90 ALD 412 .................................................. 4.60 Trawl Industries Australia Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Bens of Australia) (1992) 27 NSWLR 326 ................................. 4.30 Visa Cancellation Applicant and Minister for Immigration and Citizenship, Re [2011] AATA 690 .......................................................... 3.30 Wertheim and Department of Health, Re (1984) 7 ALD 121 .................... 3.85

TABLE OF STATUTES Commonwealth Administrative Appeals Tribunal Act 1975: 3.60, 3.85, 3.114 s s s s s s s s s s s s s s s s s s s s s s s s s s s s

2A: 3.30 3(1): 3.60 4: 3.50 32: 3.30 32(2): 3.30 33(1)(b): 3.30 33(1)(c): 3.113 33(1AA): 3.86 33(1AA)(1AB): 3.86 34(3): 3.85 34A: 3.60 34B: 3.60 34D: 3.40 34E: 3.60 34J: 3.30 35(1): 3.30 37: 3.81, 3.82, 3.121 39: 3.30 39AA: 3.30 42A: 3.40 42A(1A): 3.40 42B: 3.40 42C: 3.40, 3.60 43(1): 3.30 43(2): 3.30 43(2A): 3.30 43(2B): 3.30 43(6): 3.30

Civil Dispute Resolution Act 2011: 3.50

Freedom of Information Act 1982: 3.81 s 61: 3.115

Legal Services Directions 2005: 3.86 Safety Rehabilitation and Compensation Act 1988: 3.112

s s s s

5: 3.112 5A: 3.112 6: 3.112 14: 3.112

Statutory Declaration Regulations 1993: 3.82 Statutory Declarations Act 1959: 3.82 Taxation Administration Act 1953 s 14ZZK: 3.115

Tribunals Amalgamation Act 2015: 3.30

Veterans’ Entitlements Act 1986: 3.112 s 5C(1): 3.112 s 7A(1)(c): 3.112 s 120: 3.114

New South Wales Legal Profession Uniform Conduct (Barristers) Rules 2015 r 29: 2.40

Queensland Australian Solicitors Conduct Rules 2012 r 19.6: 2.40

Queensland Civil and Administrative Tribunal 2009 s s s s

3: 3.30 4(b): 3.30 69: 3.30 75: 3.30

United Kingdom Arbitration Act 1996: 5.40

1

Introduction to Mooting and Legal Advocacy Peter Billings and Anthony E Cassimatis

[1.10]

Introduction ............................................................................. 2

[1.20] [1.30] [1.40]

WHAT IS A MOOT? .......................................................... 2 Persuasiveness in substantive legal reasoning and oral advocacy ................................................................................. 3 Questions from Moot Adjudicators ....................................... 5

[1.50]

Preparing and exchanging written submissions .................... 5

[1.60] [1.65]

TYPES OF MOOTS ........................................................... 7 Appellate advocacy ................................................................ 7

[1.70]

Trial advocacy ........................................................................ 8

[1.80]

THE HISTORY OF MOOTING

........................................ 9

[1.95] THE ROLE OF MOOTS IN LEGAL EDUCATION ...... 13 [1.95] Moots as part of a law curriculum ...................................... 13 [1.100] Law curricula and legal “skills” .......................................... 14 [1.115] [1.115] [1.120] [1.130]

EXTRA-CURRICULAR MOOTS ................................. Internal competitions ............................................................ External competitions ........................................................... Conclusion: Structure of book .............................................

17 17 17 18

2

Ch 1 Introduction to Mooting and Legal Advocacy

[1.10]

Introduction [1.10] In this chapter you will be introduced to mooting and legal advocacy. We consider the nature and history of mooting and why it is so valuable to students who want to learn more about law and the legal system. We will introduce you to the different types of mooting and will set out for you the general structure of the book. The book has been designed to assist students who are new to the study of law while also benefiting those more experienced students (and teachers of law) who wish to deepen their participation in mooting including by competing in (or supervising participation in) national and international mooting competitions. Students who are new to the study of law should initially focus on Chapters 1 and 2. More experienced students and teachers of law will also benefit from consideration of the later chapters that are specific to the particular type of mooting activity or competition in which they may be planning to participate. WHAT IS A MOOT? [1.20] A “moot” is a mock court, tribunal or arbitral hearing in which, generally, two teams of students present opposing oral and written legal arguments (or “submissions”), based on a moot topic, before a judge, arbitrator or tribunal member. Adjudicators in moots ask questions of the student advocates and generally assess the submissions presented by the students in terms of mastery of facts of the moot topic, the quality of the legal arguments advanced and the way those arguments have been presented.

[1.30]

What is a moot? 3

Persuasiveness in substantive legal reasoning and oral advocacy [1.30] The adjudicators in moots assess the persuasiveness of the legal reasoning as applied to the relevant facts of the moot problem and the way the arguments have been presented. Ultimately, the aim of a moot, like the aim of legal advocacy in a real court, tribunal or arbitral body, is to persuade the decision-maker(s). A former Justice of the High Court of Australia has observed that: [i]n the end, the object of advocacy is, by communication, to persuade. It is to influence the decision-maker (judge, magistrate, tribunal member, juror) to accept the propositions advanced by the advocate leading to the success of the advocate’s cause.1

Persuasiveness in legal reasoning in a moot involves the effective use by students of traditional forms of legal research and analysis. Moot adjudicators will assess various aspects of legal reasoning used by students, including: • Whether all relevant legislative provisions, legal instruments and case authorities have been identified by students; • Whether students have demonstrated a command of the relevant facts of the moot problem. Having a command of the facts involves being able to present to a moot adjudicator a plausible and coherent account of the relevant facts in a way that makes the legal arguments being advanced by the students more likely to be accepted by the adjudicator; • Whether students have identified all relevant court decisions that are binding on the moot court, tribunal or arbitral body and have separately identified all court, tribunal or arbitral decisions that are persuasive but not binding;

1. Michael Kirby, “Ten Rules of Appellate Advocacy” (1995) 69 Australian Law Journal 964 at 965.

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Ch 1 Introduction to Mooting and Legal Advocacy

[1.30]

• Whether binding decisions and persuasive authorities that appear to conflict with the position of a moot team have been plausibly distinguished by that team, and whether the opposing team has done the converse, more or less effectively; • Whether students are able to argue effectively by analogy from other relevant legal rules or principles; and • Whether students have considered the underlying policy considerations that underpin the competing legal rules in the dispute. Where there are competing interpretations of relevant legislation or other instruments or relevant case authorities, a persuasive moot team is one that can demonstrate to an adjudicator that the underlying policy or practical considerations animating the relevant rules or cases favour that team’s interpretation over the opposing team’s interpretation. Persuasiveness in oral advocacy relates to the way students communicate orally with moot decision-makers. Clearly signposting the structure of oral submissions, maintaining eye contact while making oral submissions, speaking audibly, slowly and with clarity, responding directly and succinctly to questions, engaging logically and thoughtfully with the substance of a decision-maker’s questions; all of these contribute to persuasiveness. Following the traditional etiquette of court, tribunal or arbitral proceedings is also very important.2 Moot adjudicators are human beings with emotions and feelings. Persuasiveness is enhanced by the making of legal submissions in a respectful and professional manner. 2. The way in which adjudicators in moots are referred to by students reflects this traditional etiquette. For example, judges in a moot that is notionally being heard by a Superior Court are referred to generally as “Your Honour”; non-judicial adjudicators in a moot notionally before the Administrative Appeals Tribunal are generally referred to as “Member”, “Senior Member” or “Deputy President”; arbitrators in a commercial arbitration are referred to generally as “Mr …”, “Ms …” or “Mrs …” and collectively as “Madame [or Mister] President, Members of the Tribunal”; and judges in a moot notionally before the International Court of Justice are referred to as “Your Excellency” and collectively as “Madam [or Mister] President, Your Excellencies”.

[1.50]

What is a moot? 5

In our experience the most persuasive style is one involving a respectful and professional conversation with the adjudicator about the most important issues in the moot. Adjudicators do not respond well to being lectured by students. Questions from Moot Adjudicators [1.40] Through the use of questions, moot adjudicators seek to engage in a conversation with students about the competing legal arguments and factual issues and to understand why, in the view of the students, the adjudicators should prefer one set of legal or factual arguments over another. Like real life legal advocacy before a real court of law, tribunal or arbitral panel, decision-makers in moots assess the quality of legal reasoning and legal analysis offered by the advocates as applied to the facts of a legal dispute. The best moot adjudicators are those who are experts in relation to the law and practice before the courts, tribunals or arbitral bodies relevant to the moot topic. By their questions, moot adjudicators are able to direct student advocates to the most contentious and difficult legal issues and factual questions raised by the moot topic.3 Questions asked by moot adjudicators about the legal arguments being made by students, and questions asked by adjudicators on how those legal arguments relate to the facts of the moot topic (and the dialogue which hopefully follows such questions) help make moots such a valuable educational tool and sharply distinguish moots from high school debating. Preparing and exchanging written submissions and responding to arguments advanced by opposing student teams [1.50] The written submissions (also known as pleadings or memorials) prepared by students also differentiate mooting from high school debating. The preparation and exchange, in advance of a moot, of each moot team’s written submissions are an important part of mooting. The educational benefits of mooting 3. Questions from moot adjudicators are an instantaneous form of feedback to students making oral submissions in a moot.

6

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[1.50]

are enhanced dramatically by the requirement to prepare written submissions outlining the oral submissions that will be presented by students.4 The more detailed the written submissions that students are required to prepare in advance of their oral submissions, the greater the potential educational benefit.5 Requiring a student team to exchange its written submissions with the opposing team well prior to an oral hearing also significantly enhances these educational benefits as each team then has an opportunity to do further research and to respond directly to the legal arguments being made by each opposing team. The skills you have acquired and developed through the preparation of written submissions for moots will be of assistance to you after your graduation from Law School. The importance of written submissions is increasing in legal practice before courts, tribunals and arbitral bodies.6 Those of you planning to practice law will therefore learn and develop important written advocacy skills through mooting. Those of you not planning to practice law before courts, tribunals or arbitral bodies will still acquire written advocacy skills through mooting that can be used effectively in any context in which writing persuasively is important. 4. Feedback is an essential part of formative assessment, a form of assessment designed to facilitate student learning – see Mary E Keyes and Michael J Whincop, “The Moot Reconceived: Some Theory and Evidence on Legal Skills” (1997) 8 Legal Education Review 1 at 8. The exchange of written submissions prior to a moot is a form of peer feedback on the approaches students have taken to their moot. Exchange of these submissions prior to a moot provides students with the opportunity to adjust their legal arguments in manner that responds to the legal arguments advanced by the opposing students. On the potential for moots to contribute to formative development through peer feedback, see Alistair A Gillespie, “Mooting for Learning” (2007) 5 Journal of Commonwealth Law and Legal Education 19 at 34. 5. Although there is also an important skill in writing short written submissions which require students to concisely summarise their key legal arguments. 6. See, for example, KM Hayne AC, “Written Advocacy”, a paper delivered as part of the Continuing Legal Education Program of the Victorian Bar on 5 and 26 March 2007, available at http://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/haynej_05mar07.pdf

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Types of moots — Appellate advocacy and trial advocacy

7

TYPES OF MOOTS — APPELLATE ADVOCACY AND TRIAL ADVOCACY [1.60] This book focuses on legal advocacy before mock courts, tribunals and arbitral panels. There are other forms of advocacy and professional skills development in which you can participate in Law School that focus on alternative dispute resolution (ADR), interviewing and negotiation skills. There are also client interviewing and negotiation competitions.7 Appellate advocacy [1.65] There are two main types of moots. The most common form of moot is based on what is known as appellate advocacy. In this type of moot students are often asked to argue an appeal from a decision of a lower court to an appeal court. In real appellate advocacy there are the findings of fact made by the court at first instance and the appeal focuses on questions of law. The focus for students in an appellate advocacy moot is similarly on the legal issues raised by agreed facts8 or findings of fact made by a court of first instance. Mastery of these agreed facts or factual findings is still an extremely important skill for students. An important part of being a persuasive advocate involves being able to plausibly and coherently set out the relevant facts in a way that makes it most likely that the adjudicator will accept your legal arguments. In addition to identifying the relevant facts and setting them out in the most persuasive manner, factual issues can also arise in appellate advocacy when the agreed facts or factual findings are ambiguous or incomplete. Students taking part in appellate 7. For more information on the negotiation competition organised by the Administrative Appeals Tribunal (Negotiating Outcomes on Time Competition or NOOT) – see Chapter 3: Merits Review, ADR and “New Advocay”. 8. Moots that don’t technically involve arguing an appeal, but which involve making legal submissions from an agreed set of facts, can still be classed as a form of appellate advocacy as such moots do not involve the mooters having to establish the facts before the moot court or tribunal (which is the main distinguishing feature of trial advocacy).

8

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advocacy may therefore need to have awareness of some evidentiary rules and principles (subject to the rules of the moot). For example, in cases of incomplete facts, questions will often arise regarding the permissibility of drawing inferences from the agreed facts or factual findings. Often the rules of a moot may restrict students to the drawing of necessary inferences of fact (ie just because an inference is reasonable does not necessarily mean it is able to be drawn). Another evidentiary issue that may arise in appellate advocacy moots in cases of incomplete facts is the question of which party in the moot bears the onus of proof on the issue on which the agreed facts or factual findings are incomplete. Leaving these evidentiary issues to one side, the main focus of appellate advocacy moots is upon the legal arguments available to the appellant and the respondent moot teams arising from the agreed facts or factual findings of the court at first instance. Trial advocacy [1.70] The other, less common, type of moot is based on what is known as trial advocacy. In trial advocacy, advocates must also seek to establish the relevant facts where there is conflicting evidence before the court. Evidentiary issues are, therefore, far more significant in trial advocacy than they are in appellate advocacy. Trial advocacy also requires the making of substantive legal submissions. Consequently, real trial advocacy is more complex in practical terms than appellate advocacy.9 Moots that involve aspects of trial advocacy, where mooters are required to seek to persuade the court to accept their factual contentions, are also more complex in practice (and more difficult to organise) than moots involving appeals on pure questions of law where the facts are not generally in contention. 9. See, for example, Thomas A Mauet and Les A McCrimmon, Fundamentals of Trial Technique (3rd ed, Lawbook Co, Sydney, 2011). Appellate advocacy tends to raise far more complex issues of legal analysis. This is understandable in real life as appeals are normally brought in cases where the decision of the court at first instance is questionable on one or more legal grounds.

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The history of mooting

9

Some moot topics combine aspects of appellate and trial advocacy. Unlike normal appellate advocacy, some moot topics require students to make submissions in relation to conflicting or equivocal pieces of evidence.10 Other facts set out in the moot topic may, however, be agreed as between the parties or otherwise stipulated, leaving more scope for submissions on substantive legal issues of the kind normally made in appellate advocacy. THE HISTORY OF MOOTING [1.80] Mooting has been used for centuries as form of legal education. Even in ancient times, mock court hearings were recognised as a valuable educational tool. Over 2000 years ago, in his dialogue “On the Orator” Cicero (106-46 BCE) has the character Crassus approve of the following practice: … you propound some case, closely resembling such as are brought into court, and argue it in a fashion adapted as nearly as possible to real life.11

Cicero then recommends that it is better for students to be given the facts of the case in advance so that they can prepare their arguments. Moots similar to those that we are familiar with today began to be used as a serious form of legal education in the Inns of Court in London by about the 14th Century, and became an essential part of legal education in England. However, by the early 19th Century their use had declined in England, whereas they continued to be used extensively in legal education in the United States. English lawyers began to draw inspiration from the United States for the re-introduction of moots into English legal education.12 10. Topics in the National Administrative Appeals Tribunal Moot Competition often have issues involving conflicting, or equivocal, factual evidence. Chapters 3 and 3 consider this competition in detail. 11. Cicero, On the Orator – Books 1-2 (translated by EW Sutton and H Rackham), (Loeb Classical Library 348, Cambridge, MA, Harvard University Press, 1942) at 103. 12. See, for example, Cecil Walsh, “The Moot System” (1899) 15 Law Quarterly Review 416.

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During the late 19th Century and through the course of the 20th Century, a revival in the use of moots in England occurred. Lord Atkin, in his introduction to the 1924 Moot Book of Gray’s Inn,13 described the revival of mooting at Gray’s Inn in 1875 as “an attempt … to uphold the tradition of sound learning in English law.”14 Various factors contributed to the decline of moots in England in the 18th and early 19th Centuries. In the late 19th Century concerns were raised about the vocational character of moots and whether this was compatible with the more theoretical approaches being taken to the teaching law at English universities at the time. In a lecture delivered at All Souls College, Oxford, in 1883, AV Dicey observed that: In the Law Schools of the United States, and at the Moot Courts, which have been with most happy results revived in one at least of the Inns of Court,15 a great deal is taught and learned by means of arguments carried on by students or young barristers in the presence of experienced lawyers, and with all the solemnity of proceedings in court.16

“But …” Dicey continued: … for reasons which easily suggest themselves this mode of instruction could not be practised with advantage either at Oxford or at Cambridge.17 13. Atkin (ed), Moot Book of Grey’s Inn (Butterworths, London, 1924). 14. This quotation was set out with obvious approval by Sir William Holdsworth in “A New Discourse on the Study of the Laws” in WS Holdsworth, Some Lessons from Our Legal History (Macmillan, New York, 1928), 163, 182. 15. Dicey here appears to be referring to Gray’s Inn. Walsh in Cecil Walsh, “The Moot System” (1899) 15 Law Quarterly Review, describes the Gray’s Inn initiative at 422-423. Walsh also records that “[a] determined effort to revive the practice of mooting amongst us was made by Sir Frederick Pollock when he lectured for the Council of Legal Education” - 422. [Footnote not in original.] 16. AV Dicey, Can English Law be taught at the Universities? (Macmillan and Co, London 1883), 6. 17. AV Dicey, Can English Law be taught at the Universities? (Macmillan and Co, London 1883), 6-7.

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The history of mooting

11

These observations can be contrasted with observations made by Sir William Holdsworth (the great legal historian) in an article published in 1921.18 He noted that “[i]n our own days the system of mooting has been revived in various centres of legal education to the profit of teacher and student alike.”19 Later in the article Holdsworth emphasised the importance of discussion (rather than just reading and summarising) of the law for the development of students: It is the place which discussion should occupy in a legal curriculum that distinguishes a training in law from the training in other sciences. Reading, commonplacing20 and reporting may teach a … [student] the principles of the law: they will not teach … [the student] to be a practical lawyer. It was the recognition of this fact which was the strong point of the older system of legal education [of the Inns of Court]. It is the non-recognition of this fact which is the weak part of our modern system of public teaching and examinations in law. The destruction of the old system destroyed to a large extent that organized discussion which prepared students for actual practice. In our modern system it does not take the place which it once took, unless, as at Oxford and at one or two other places, the pupils are wiser than their teachers, and set up for themselves a moot club, which reproduces some of the advantages of that old system which the benchers of this period [ie the 19th Century] were too selfish to maintain.21

Dicey’s views reflect certain preconceptions about the role and potential benefits of mooting. A belief that moots were 18. WS Holdsworth, “The Disappearance of the Educational System of the Inns of Court” (1921) 69 University of Pennsylvania Law Review 201. Dicey was the Vinerian Professor of English Law at Oxford University in the 19th Century and Holdsworth was appointed to the Vinerian Chair in the 20th Century. 19. WS Holdsworth, “The Disappearance of the Educational System of the Inns of Court” (1921) 69 University of Pennsylvania Law Review, 215-216. Compare the views of LCB Gower, “English Legal Training – A Critical Survey” (1950) 13 Modern Law Review 137, 189. 20. Holdsworth describes this practice as essentially preparing summaries of cases organised alphabetically – WS Holdsworth, “The Disappearance of the Educational System of the Inns of Court” (1921) 69 University of Pennsylvania Law Review, 220. [Footnote not in original.] 21. WS Holdsworth, “The Disappearance of the Educational System of the Inns of Court” (1921) 69 University of Pennsylvania Law Review, 221.

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exclusively focussed on vocational training may have fuelled Dicey’s scepticism regarding the place of moots within a university context. Holdsworth recognises a far broader utility for moots, emphasising their potential role in promoting deeper discussion by students of the law. Happily for legal education, Holdsworth’s views now appear to have been generally accepted. At Oxford University today, for example, mooting is now a compulsory element of its undergraduate law curriculum.22 The same is true of many other university law schools. With the revival of mooting in the 19th and 20th Centuries, mooting became an important part of legal education within Australia.23 In common with law schools in the United States, the focus of legal education in Australia appears to have changed over the years. In the United States, an initial focus in legal education was on preparing future lawyers for legal practice. This “trade school” focus eventually gave way to a more theoretical orientation in which legal education was perceived as being more distant from legal practice. Legal education is said to have now entered a third stage of development which “… aims to reorient the Law School experience by combining academic rigour and interdisciplinary breadth with engagement in practice.”24 Now that law curricula are increasingly seeking to balance the theoretical and practical development of students,25 moots have an important role to play in striking this balance.

22. David Pope and Dan Hill, Mooting and Advocacy Skills (2nd ed, Sweet & Maxwell, London, 2011), 6. 23. See, for example, Terry Gygar and Anthony Cassimatis, Mooting Manual (Butterworths, Sydney, 1997), 2-3. 24. University of New South Wales Law School, Curriculum Review, UNSW Law, Sydney, 2014, 5. 25. See, for example, University of New South Wales Law School, Curriculum Review, UNSW Law, Sydney, 2014.

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The Role of Moots in Legal Education

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THE ROLE OF MOOTS IN LEGAL EDUCATION Moots as part of a law curriculum [1.95] As we have seen, moots have been used for centuries to teach students the law. University law curricula employ moots in various ways. One important use of moots is as an embedded activity within substantive law courses such as Contract, Torts or Criminal Law.26 Moots used in this way serve as a means by which students studying these areas of law can deepen their knowledge and understanding of these areas of law. Moots contextualise the law within a set of facts. In substantive law courses such as Contract and Torts students are taught legal rules and principles emanating from cases but until those rules and principles are contextualised it is difficult to understand how they operate or why they exist. Moots also help students and teachers of law to delve into the “shades of grey” of the law and to engage more critically with differing judicial opinions (for example from different judges/ courts/jurisdictions) and related academic controversies. In this way moots help us to learn how to critique the law and to question why legal rules and principles are the way that they are.27 Embedded moots can also be used to integrate practical skills (for example legal research, writing and oral advocacy skills) into the substantive law curriculum. Moots can be excellent ways in which students can develop a range of different skills.

26. For descriptions of embedded moot program in the areas of constitutional law and tax law, see Andrew Lynch, “Packing them in the Aisles: Making Use of Moots as Part of Course Delivery” (1999) 10 Legal Education Review 83; and Keyes and Whincop, note 4 above. 27. I am indebted to Camille Boileau for these insights.

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Law curricula and legal “skills” [1.100] To fully appreciate the potential benefits of mooting it is important to understand the different types of skills that mooting can help students to develop and enhance. It is common to think of moots solely as a way to develop oral advocacy skills.28 It is true that moots generally improve student confidence and help make students more effective public speakers. It would be wrong, however, to see moots solely as a form of vocational training for future barristers or solicitor-advocates. This is because moots involve the development of written and oral legal arguments in response to a moot problem and moots, therefore, help students develop a much broader range of transferable skills. Indeed, core academic skills of research and legal analysis are enhanced by well-structured mooting exercises.29 According to Keyes and Whincop: [m]ooting presents the opportunity to develop a number of important skills. … First, there are skills of facility with doctrine. These include the ability to conduct legal research, to apply legal principles to a factual situation, and to formulate a submission for oral (and sometimes also written) delivery to the court. Second, there are skills of advocacy. These differ primarily from the first set of skills because they are primarily rhetorical - they concern a student’s ability to persuade. Third, there are strategic skills, perhaps the least well recognised skill component. Knowing how to run a case is frequently not restricted to legal and rhetorical abilities. Strategic considerations may suggest that a side does not run every possible argument; there may be advantages in conceding some aspects of the case. Fourth, there are skills of co-ordination within groups.30 28. Gillespie refers to legal academics viewing mooting with “suspicion”, worrying that it is “simply a ‘trendy’ trick” intended to place “vocational skills within the undergraduate curriculum” – Gillespie, note 4 above, 35. 29. For a detailed account of the educational potential of mooting see Mark Thomas and Lucy Cradduck, “The art of mooting: mooting and the cognitive domain” (2013) 20 International Journal of the Legal Profession 223. Gillespie argues that moots “could be an ideal vehicle for [problem based learning]” – Gillespie, note 4 above, 30. 30. Keyes and Whincop, note 4 above, 16. There are other skills that mooting helps to develop that might be broadly characterised as communication and collaboration skills. For example, mooting can help teach skills related to the

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The Role of Moots in Legal Education

15

Each of these skills has the potential to reinforce and deepen the development of the other skills.31 Legal research skills that are deepened and developed through mooting improve the quality of legal arguments. This, in turn, enhances the quality of oral submissions, which generally has a positive impact on the confidence of students.32 Increased confidence in the making of oral submissions leads, invariably, to the more rapid development of rhetorical skills and results in students being more persuasive. Enhanced research skills allow for more effective strategic judgments to be made as students begin to anticipate the different types of questions that a moot adjudicator is likely to ask depending on how legal submissions are structured. Skills of coordination in groups also potentially impact on the development and deepening of other skills. For example, being members of a team allows students to: discuss research direction and outcomes; present practice oral submissions before other team members; and discuss strategic considerations. Therefore, the team context serves to further consolidate and develop these different skills. Students derive the maximum benefit of being a member of a team where all team members collaborate effectively (including through the equitable sharing of work load) and where team giving and the receiving of constructive feedback and criticism, and skills related to the team context such as dividing research tasks, reaching compromises and understanding, and working effectively with group dynamics. 31. See, for example, Mark Thomas and Lucy Cradduck, “The art of mooting: mooting and the cognitive domain” (2013) 20 International Journal of the Legal Profession, pp 226-236, who contend that mooting develops skills in multidimensional, interrelated and interdependent ways. 32. This has been our experience over decades of supervising student participation in moots. A similar point is made, for example, by Pope and Hill, n 22 above, pp 128-130. Tim Hopf and Joe Ayers, “Coping With Public Speaking Anxiety: An Examination of Various Combinations of Systemic Desensitization, Skills Training and Visualisation” (1992) 20 Journal of Applied Communication Research 183 describe research that found that systemic desensitisation (for example, by encouraging relaxation through breathing exercises) and cognitive interventions (ie encouraging positive thought patterns) were more effective than skills training as an initial intervention to reduce public speaking anxiety.

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members mutually support each other. The development of each of these skills is increasingly being recognised as an essential component of the learning outcomes expected in legal education.33 Moots are also used within University law curricula in dedicated advocacy courses. Given the absence of any obvious link with a particular area of substantive law, it is tempting to view such 33. Mooting has the potential to develop and enhance each of the “threshold learning outcomes” in law endorsed by the Council of Australian Law Deans in 2010 for LLB degrees and in 2012 for JD degrees. In addition to the threshold learning outcomes relating to knowledge, ethics and professional responsibility, thinking and legal research skills, and self-management skills, which mooting has the potential to develop and enhance, mooting also directly develops and enhances the “communication and collaboration” threshold learning outcome adopted by the Council of Australian Law Deans in 2010. This threshold learning outcome requires that: [g]raduates of the Bachelor of Laws will be able to: (a) communicate in ways that are effective, appropriate and persuasive for legal and non-legal audiences, and (b) collaborate effectively. In relation to this threshold learning outcome, it has been observed that: “… to communicate persuasively, a graduate will need to be able to choose the right form of communication for the particular legal context of that communication; for example, approaches to communication that are appropriate for advocacy may not suit a context in which interviewing, negotiation or mediation communication methods are appropriate. … [The phrase ‘collaborate effectively’] … encompasses teamwork, working in groups, and working cooperatively with others. Through the … [Learning and Teaching Academic Standards] consultation process, many members of the profession have emphasised these skills as critical to the modern legal workplace. Constructive approaches to collaboration include an ability to negotiate and work effectively through team disputes and problems with team dynamics” - Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council), 20-22, http:// www.cald.asn.au/assets/lists/Education/ KiftetalLTASStandardsStatement2010%20TLOs%20LLB.pdf. The equivalent threshold learning outcome for JD graduates is substantively the same. For a discussion of the regulatory context in which collaborative skills have been considered as an important part of legal education, see Alex Steel, Anna Huggins and Julian Laurens, “Valuable Learning, Unwelcome Assessment: What LLB and JD Students Really Think about Group Work” (2014) 36 Sydney Law Review 291 at 293-300.

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Extra-curricular moots

17

advocacy courses as only concerned with the rhetorical skills involved in the making of oral submissions. Dedicated advocacy courses, however, have the potential to develop and consolidate each of the four skills referred to above. Such courses can foster the development and enhancement of legal research skills and the analytical skills required when preparing persuasive written and oral legal arguments. The strategic and group work skills referred to above can also be focussed upon and developed in general advocacy courses through advocacy exercises in which students work together in small groups as teams in each exercise. EXTRA-CURRICULAR MOOTS Internal competitions [1.115] Law students generally have the opportunity to compete in multiple extra-curricular mooting competitions. Law schools generally have internal mooting competitions. In some law schools there are internal competitions reserved for first year students and other internal competitions that are organised for more senior students. These internal competitions are often administered by the student societies from within each law school. The benefits to be derived from participation in these competitions vary depending on a range of factors including the quality of the moot topics and the legal expertise of the moot adjudicators. Nonetheless even rudimentary internal moot competitions offer benefits to students doing their first moots. Students invariably improve their advocacy skills with each moot in which they appear. Internal mooting competitions can provide new students with a valuable introduction to the benefits of mooting. External competitions [1.120] There are also multiple external mooting competitions. These range from relatively small national competitions that require only comparatively modest amounts of work from students, to enormous international moot competitions that

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attract hundreds of moot teams and literally thousands of students from all over the world.34 These large international competitions also require immense amounts of work from students if there is to be any hope that they will do well in these competitions. Panels of experienced lawyers and academics judge these prestigious competitions. Some competitions require students to research and write two written submissions (each around 10,000 words in length) which are assessed by panels of experienced adjudicators. Students prepare for these competitions by engaging in multiple practice moots before panels of practice adjudicators who provide detailed feedback. Practice moots are often filmed in order to maximise the opportunities for educational development and success in the competitions. Due to the amount of work required by the larger competitions, many law schools give academic credit for participation. Conscientious participation in these competitions, which normally includes careful supervision by academic staff, ensures outstanding educational outcomes. Traditional research and legal writing skills; advocacy skills; strategic skills; and group skills can all be developed to the very highest level. Indeed, our view, which is supported by the evidence found in the literature above, is that there is no better way in which to receive a legal education. The structure of this book and some concluding observations [1.130] This chapter has described the basic features of mooting and in doing so has offered academic arguments in defence of student participation in mooting. The potential benefits of mooting extend far beyond the development and enhancement of oral advocacy skills. 34. In this category would fall the Philip C. Jessup International Law Moot Court Competition, the Willem C. Vis International Commercial Arbitration Moot and the ELSA Moot Court Competition on WTO Law. There are also very demanding national and international mooting competitions such as the Administrative Appeals Tribunal Moot Competition and the International Maritime Law Arbitration Moot.

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Extra-curricular moots

19

Skills related to traditional legal doctrine and research can also be developed and enhanced through mooting. The preparation of detailed written submissions, that are exchanged between mooting teams well prior to a moot, provide a powerful incentive for academic rigour and a valuable opportunity for formative peer feedback for students. Expert moot adjudicators provide instantaneous feedback through questioning and through comments to students during moots. Students learn strategic skills and important group work skills. These different skills are interdependent and inter-related. Development in one skill dimension provides new opportunities for the development of skills in the other dimensions. This chapter has highlighted the academic case for mooting. There are other reasons why students might like to moot which are related but which probably cannot be considered as strictly academic. First, mooting, generally, is fun. It can be painful at times but our overall impression from many years of supervising student participation in moots is that students invariably reflect fondly on their experience of mooting and appreciate the benefits that mooting gives them. Second, mooting can significantly improve your career prospects. Mooting before senior Judges and legal practitioners gives you the opportunity to meet and talk with potential future mentors and employers. Competing in national and international moot competitions gives you an opportunity to meet students from other law schools in Australia and overseas. We have seen many amazing legal careers built on the foundation of the educational benefits of mooting.35 If students work hard and intelligently, mooting can open up a myriad of 35. We must emphasise that deriving these educational benefits is not dependent on being the formal winner of a moot competition. We have seen former students who have worked hard and intelligently within moot competitions go on to successfully build on their moot experiences in their later careers even though they were “knocked out” relatively early in those moot competitions. There are elements of luck and subjective judgments that cannot be excluded from mooting or, for that matter, from real-life legal advocacy.

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new opportunities, and not necessarily only in a traditional legal context. In any field where oral or written persuasion is important (which pretty much means in every field of human endeavour) mooting has the potential to help you develop these skills. Mooting won’t automatically turn you into a nationally or internationally renowned barrister. Years of dedicated hard work will still be required after graduation for this to occur.36 But mooting has the potential to provide students with the best possible preparation that a university can offer for life after law school. His Excellency Judge James Crawford, a Judge of the International Court of Justice in The Hague, wrote recently about what makes for a good international legal practitioner.37 He asked a dozen or so (non-lawyer) expert witnesses in cases before the International Court of Justice about what they considered to be the attributes of a successful international lawyer. According to Judge Crawford, several of these expert witnesses: … commented that international lawyers have a very challenging role to perform, and that the practitioners they have worked with came across as highly competent and specialized. Many identified good speaking skills, strong leadership abilities, a willingness to go out on the ground to examine a problem at first hand, and a sense of humor as useful attributes for an international lawyer. Other repeated observations included the high levels of academic ability 36. It is, therefore, wrong to criticise mooting for not producing “ready made” Barristers. This is to misunderstand the educational potential of mooting. For an attack on mooting from this perspective, see Alex Kozinski, “Essay – In Praise of Moot Court – Not!” (1997) 97 Columbia Law Review 178. There is much in this article with which we strongly disagree - see, for example, the claim that advocates in moots “… try hard to score points with the judges by giving glib or bombastic answers – ones that get a reaction from the judges and the audience. It is not at all uncommon, for example, for moot court advocates to give smart-alecky answers that elicit a laugh from the audience, and maybe even the judges, and thus score debater’s point” – at 184. This practice that Judge Kozinski describes is unlike anything we have observed in moots in Australia, Europe or, for that matter, the United States. 37. Judge Crawford, as a legal academic, has been providing academic support and guidance to students competing in moots since the 1970s.

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Extra-curricular moots

21

required to absorb complex technical information across a range of disciplines and translate it into support for cogent legal arguments, and the skills required for managing clients (and opposing counsel) efficiently and retaining focus on the legal issues in the case, without succumbing to the sometimes intense political pressure. The capacity to separate the wheat from the chaff in order to construct convincing arguments, excellent strategic awareness, and good teamwork skills were also highlighted.38

No law school can develop in its students each and every one of the attributes referred to by Judge Crawford. Nevertheless, of all the educational activities students can undertake at law school, mooting offers students perhaps the greatest opportunity to develop and deepen the skills to which Judge Crawford refers. In the chapters that follow we set out advice and strategies that will help you realise the potential that mooting offers you to do something at law school that is enriching and fun and that will also increase your chances of a successful and fulfilling career after law school. Chapter 2 offers some general guidance for students on strategies to use when competing in common forms of appellate advocacy moots where students moot before a mock superior court from an agreed set of facts or argue an appeal from a first instance decision. Chapters 3 and 4 deal with communication skills and advocacy in the context of Australian public law and the Administrative Appeals Tribunal (“AAT”). The AAT employs alternative39 dispute resolution techniques and occupies a unique position of a merits review body hearing public law appeals de novo (ie, as if the tribunal was the original decision maker, thus reassessing all relevant factual and legal issues that were before the original government decisionmaker40). 38. James Crawford, “International Law as Discipline and Profession” (2012) 106 American Society of International Law Proceedings 471 at 478-479. 39. “Alternative” here refers to dispute resolution techniques that do not involve formal adjudication and determination by courts or tribunals. 40. The tribunal can also consider any relevant new facts or legal issues that have come to light following the original decision.

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Chapter 3 focuses on negotiation skills in the context of a national negotiation competition organised by the AAT. It has been recognised that … approaches to communication that are appropriate for advocacy may not suit a context in which interviewing, negotiation or mediation communication methods are appropriate.41

These differences warrant the separate consideration in Chapter 3 of alternative dispute resolution techniques in general and negotiation skills in particular. Chapter 4 focuses on the national mooting competition organised by the AAT in a merits review setting. Chapter 5 continues this focus on alternative dispute resolution but turns away from public law and focuses instead on private law arbitrations and disputes regarding the international sale of goods. The chapter offers expert guidance to students on how to become successful advocates through participation in the Willem C Vis International Commercial Arbitration Moot competition. The chapter also offers particular guidance on the role of a mooting coach. Advocacy in the context of alternative dispute resolution and disputes regarding the international sale of goods are also the focus of Chapter 6 which deals with participation in the International Maritime Law Arbitration Moot competition. This chapter builds upon the consideration of advocacy in private commercial arbitration in Chapter 5, offering a more specialised focus on arbitration advocacy in the context of contractual disputes related to the carriage of goods by sea, and provides students with important insights into international commercial practice and dispute resolution.

41. Sally Kift, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council), 20-22, , 21.

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Extra-curricular moots

23

Substantive and procedural legal issues of arbitration law and practice and private international law also figure prominently in the International Maritime Law Arbitration Moot. Chapters 5 and 6 distil the wisdom and legal expertise of decades of guiding countless students to success in the field of international commercial arbitration. Chapter 7 returns to public law and focuses attention on public international law and the Philip C Jessup International Law Moot Court Competition. This competition essentially involves appellate style advocacy and requires students to argue for fictional States in a dispute before the International Court of Justice, the principal judicial organ of the United Nations. The facts of the dispute are set out in a special agreement requiring students to develop skills similar to those required for success in national appellate advocacy competitions. What distinguishes the Jessup moot and other public international law advocacy competitions from other mooting competitions is the uncertainty of international law in comparison to national public law or contractual and conflict of law rules and arbitral procedures (considered in Chapters 3–6). Advocates who have to deal with this greater uncertainty and the problems that arise between sovereign States develop skills that are adaptable to almost any context. Finally, this notion of adaptability is important to emphasise. Each of the competitions that provide the framework for the communication and advocacy advice and guidance offered in Chapters 3–7 have very different rules governing the conduct of the respective competitions. Attentiveness to these rule differences is essential for competitors in these different competitions. Despite these differences, communication and advocacy excellence, developed in the context of each of these competitions, contributes to the development of generic skills that are transferable beyond the specific legal context of each of these competitions.

24 Ch 1 Introduction to Mooting and Legal Advocacy

[1.130]

The resulting mastery of these skills is the most important contribution of mooting to legal education, and the aim of this book is to guide students towards that achievement.

2

Appellate Advocacy Anthony E Cassimatis [2.10]

Introduction ........................................................................... 26

[2.25] [2.25] [2.30] [2.35]

GETTING READY TO BEGIN MOOTING .................. 26 The release of the moot problem and the initial team meeting ................................................................................. 26 Preliminary legal research .................................................... 28 Follow-up team meetings ..................................................... 30

[2.40] [2.40] [2.45]

Preparing written and oral submissions ............................... 31 The initial stages .................................................................. 31 Written outlines of submissions ........................................... 36

[2.50] [2.60] [2.65]

PREPARING YOUR ORAL SUBMISSIONS ................. 37 Common challenges in presenting oral submissions .......... 38 Writing out in full the oral submissions that you plan to make ...................................................................................... 39

[2.70] [2.75]

Responding to questions ...................................................... 40 Disagreements with a moot adjudicator .............................. 41

[2.75] [2.80] [2.85]

When to concede and when to stand your ground ............. 41 Appellate advocacy opportunities within Australia ............. 43 Concluding observations ...................................................... 43

26 Ch 2 Appellate Advocacy

[2.10]

Introduction [2.10] This chapter offers some general guidance for students on strategies to use when taking part in common forms of appellate advocacy moots in which students moot before a mock superior court arguing from an agreed set of facts or arguing an appeal from a first instance decision. The chapter adopts a step-by-step approach to preparing for an appellate advocacy moot. It offers general advice on how you can prepare for, and then present, your oral arguments in the moot. There are many different types of appellate advocacy moots. This chapter focuses on a common form where two teams of two students1 moot against each other, arguing an appeal from a decided case or mooting in respect of an agreed set of facts. Such moots also often require a written outline of argument (running for only two or three pages) to be prepared by each team and to be exchanged prior to the moot. GETTING READY TO BEGIN MOOTING The release of the moot problem and the initial team meeting [2.25] The first thing you need to do when your moot topic is released is to meet with your moot partner to read and discuss the topic. An excellent way to begin your preparation is to have a face-to-face meeting with your partner where you take turns reading the moot topic out loud paragraph by paragraph. This will be the first of many re-readings of the problem by both team members. 1. Sometimes moot rules permit teams of three students, with one student acting as the “instructing solicitor” who does not make oral submissions in the moot. If you are a member of a team of three then you should still follow the advice offered in this chapter but divide the initial research tasks amongst all three members of the team. A three way rotation of initial research is best if time permits. Once the allocation of issues occurs to the two speakers in the moot, the third member of the team should provide general research support to each speaker and should actively be involved in all team meetings and team decisions about how the written and oral legal submissions are prepared and delivered.

[2.25]

Getting ready to begin mooting

27

Knowing the facts in your moot topic is incredibly important to achieving success in a moot. The very best mooters know and memorise the exact wording of the facts of their moot problem. A good moot adjudicator will always stop a student who is guilty of overstating or otherwise misstating the facts of the moot problem, and will require the student to take the adjudicator to the precise page or paragraph where the relevant facts are set out. Sometimes there is ambiguity in the facts of a moot problem and the moot rules may allow inferences to be drawn, but success in mooting is always based on a comprehensive and precise knowledge of the facts of the problem. This is why the first team meeting should involve a team reading of the moot problem. The first meeting should also involve both team members engaging in a legal issue spotting exercise. The issue spotting can be combined with the team reading of the problem. After each paragraph of the moot problem is read out loud, team members can pause to briefly discuss the legal issues raised by that paragraph. By the time you and your moot partner have finished reading the moot problem you should hopefully have a basic idea of the main legal issues that have been raised by the facts of the moot problem. One difficulty in spotting legal issues arises for students who are at the beginning of their study of law. It is obviously much easier to spot legal issues if you have already systematically studied the area or areas of law raised by the moot topic. If you haven’t studied all of these areas of law, you may need to undertake some preliminary legal research before you try to identify all of the important legal issues raised by the moot topic. Once you have identified all of the important legal issues raised by the moot topic, you should divide those legal issues with your partner. If you are both familiar with the areas of law, this division of issues can occur at the first team meeting. If you are not familiar with the areas of law then the process of issue spotting and the initial division of issues amongst team

28 Ch 2 Appellate Advocacy

[2.25]

members will have to wait until after you have both undertaken some preliminary legal research. Other important issues to discuss at the first meeting are the moot rules and any specific instructions regarding moot preparation. It is very important to focus precisely on what you are being asked to do in the moot. For example: • Are written submissions required? • If so, what is the word or page limit on those written submissions? • When are they due? • For how long are oral submissions to be made? • Have specific instructions been given on the points that you are to argue on appeal? • Have you been given specific instructions regarding the research required for the moot? Preliminary legal research [2.30] The most efficient way to begin legal research on issues raised by a moot topic is to start with the legal resources that are most general and the easiest to read. If you have previously studied the area of law then the best starting place is normally your lecture or seminar notes from your classes on that area of law. These notes should be the easiest for you to read and will usually be systematic, providing a reminder of all relevant legal rules, legislation and court decisions, etc. Once you have looked at your own notes, or if you have not yet formally studied the area of law, you should turn to a general text book on the area. Again, when choosing a text book to start with, it is best to begin with more general student text books as these will be the most accessible and easily understood. Once you have consulted and read the relevant sections of these more general resources you should then begin to focus more closely on the precise issues raised by the moot problem. In relation to these more precise issues, you should turn your attention to more specialist text books on the relevant area of law.

[2.30]

Getting ready to begin mooting

29

In some areas of law, there is a leading text that legal practitioners and courts that decide cases in this area regularly rely upon. Because a moot replicates aspects of legal practice, such books will be extremely valuable in allowing you to deepen your legal research on the relevant legal rules, legislation and cases. Remember to check all of the relevant footnotes in such books. The next step is to make sure that your research is up to date. Depending on when the text-books you have consulted were published, you will need to undertake legal research using databases such as Westlaw to make sure you have identified all of the most recent authorities relevant to the precise moot issues. You will need to use the legal research skills that have been taught in legal research classes in your first year of study at law school. We also deal with issues of legal research for mooting in later chapters. There is one other preliminary research task which is very specific to mooting that at least one member of the team should undertake at an early stage in your moot preparation – court research. Because appellate advocacy generally appeal before a superior court, it may undertake some research on the powers appellate court that is notionally hearing

involves arguing an often be necessary to and procedures of the the moot.

For example, you may need to check the rules of the appeal court when hearing appeals, to answer questions such as: • What orders are you seeking on the appeal? • Do you have to address the issue of the costs of the appeal and the costs of the hearing of the court below? • Is the appeal court bound by its previous decisions? If your appeal is notionally before the High Court of Australia then the High Court is not bound by its previous decisions but the Court does have relatively strict rules about when it will depart from its own previous decisions.2 2. See, for example, Michael Kirby, “Precedent law, practice and trends in Australia” (2007) 28 Australian Bar Review 243 at 246-247.

30 Ch 2 Appellate Advocacy

[2.30]

If your appeal is before a superior court below the High Court of Australia, you will need to consider which decisions from which courts are binding on the Court that is notionally hearing your appeal.3 For example, the High Court of Australia held in 2007 that: Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong …. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.4

Follow-up team meetings [2.35] Your initial foray into the legal resources relevant to the moot topic should be followed by another team meeting. The amount of time you have before you are required to moot will determine how many meetings you are able to usefully organise with your partner. Ideally, after you have initially divided up the research issues with your partner and done your initial research on the issues you have been allocated, you should meet again with your partner and each of you should report on the results of your initial research. If there is time it is a very worthwhile practice to then swap research issues with your partner, with each of you sharing the results of your research. The best moot teams are those in which all of the students have basic understanding of all of the submissions that each team member will be making in the moot. This type of understanding can be developed by swapping research issues at an early stage. If you have limited time to prepare for your moot, you may, however, simply not have time to swap research issues with your partner. 3. See, for example, Matthew Harding and Ian Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts” (2012) 34 Sydney Law Review 239. 4. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209; 81 ALJR 1107 at 151-153 [135], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

[2.40]

Preparing your written and oral submissions

31

If you do have time to swap research issues then you should schedule another meeting with your partner to again share the results of your research on the new issues that you have just undertaken. Once everyone in the team has done preliminary research on all of the legal issues it is then necessary to organise an extremely important team meeting to determine your team’s strategy leading up to the moot. At this point you should all have a clear idea of how to divide your case between the first and second speaker in the moot. Sometimes moot topics divide the issues for you. In other moots you may have some choice as to how to divide the issues. If you have choice then you should divide the issues in the most logical way possible to ensure that you present your case as persuasively as possible. PREPARING YOUR WRITTEN AND ORAL SUBMISSIONS The initial stages [2.40] You should now have a clear idea of the legal issues on which each team member will be making oral submissions. As already noted, you should be constantly re-reading the moot topic so you have a detailed and precise knowledge of the facts of the moot problem. You now need to employ all of your research skills to identify all of the relevant legal rules, cases and other legal authorities that relate to the legal issues on which you will need to make oral submissions. In relation to the facts of the moot problem, it is important that you start thinking about how you will frame the facts when you introduce the problem to the moot court. The appellant team has the opportunity to set out at the beginning of their oral submissions what they consider to be the essence of the dispute before the court. This is often referred to as the “case theory” — what is this case really about? Moot adjudicators will generally allow you to offer a couple of sentences at the beginning of your oral submissions outlining how you are framing the case. You should begin thinking about the essence of your case at an early stage. If you are acting for

32 Ch 2 Appellate Advocacy

[2.40]

the respondent in the moot, you should also begin thinking about how it will be best to set out the facts in order to support your view of the law. If the case theory offered by the appellant team has failed to mention important facts and policy considerations that favour the position of the respondent then the first advocate for the respondent should offer a competing case theory that focuses on the essence of the case from the respondent’s perspective.5 You should be thinking about these issues as you are undertaking your research. We will return to this issue later in this chapter. In relation to your research, you should begin asking yourself questions that will be important in the moot. A moot is not like a lecture or a seminar presentation. While you do have to understand all the relevant rules of law and the relevant case authorities, you cannot afford to dwell too long on issues that are not in dispute between the parties. A good moot adjudicator is always focussed on the main issues in contention between the opposing sides in the moot. A relevant legal rule might have multiple elements but only one of these elements might be the subject of the dispute between the parties. There is no value in setting out in detail aspects of rules and related facts that are not in contention between the parties. Your research therefore should be focused on the issues in contention, just as your oral submissions will be focused on those issues. There are a number of questions that you can usefully ask yourself as you research more deeply into your moot problem: • What are your most important legal arguments (ie the arguments that you must succeed on in order to succeed on the law in your moot)? • Why are these arguments your most important legal arguments? • What are your opponents’ most important legal arguments and why? 5. For practical examples of the importance of framing the issues in a way that enhances the persuasiveness of your case see Karl N Llewellyn, “A Lecture on Appellate Advocacy” (1962) 29 University of Chicago Law Review 627 at 632-637.

[2.40]

Preparing your written and oral submissions

33

• What is your strongest legal argument and why is it so strong? • What is your weakest legal argument and why is it weak? • What are your opponents’ strengths and weaknesses? • What are your best case authorities in support of your most important legal arguments and what are the strengths and weaknesses of these cases? • What are the best case authorities in support of your opponents’ legal arguments and what are the strengths and weaknesses of these cases on which your opponents are likely to rely? • How do the different legal arguments that you and your partner are planning to make in the moot interrelate with each other? Are your different legal arguments entirely consistent with each other and, if not, are they framed as alternative arguments? These questions should be constantly asked as you research. As you develop answers to these questions, these developing answers should help you focus your research, ever more sharply, on the most important issues in contention between the parties. If you use these types of questions to drive your research and if you correctly answer the questions based on the relevant legal rules and case authorities, you will be in a much stronger position to engage in a dialogue with moot adjudicators on the legal and factual issues that are of central importance to your case. We will return to this issue of engaging in a dialogue with your moot adjudicators later in this chapter. These questions also highlight an important aspect of mooting which students often struggle to understand, namely the importance of openly addressing weaknesses in your legal argument. Real advocates in court have ethical duties to the court which are higher than the duties that advocates owe to their clients. These duties include a duty to raise before a court legal authorities that stand against the submissions that an advocate is planning to make.

34 Ch 2 Appellate Advocacy

[2.40]

Lord Reid in the House of Lords decision in Rondel v Worsley6 addressed the relationship between the different duties of a legal advocate in the following way: Every counsel has a duty to his [or her] client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he [or she] thinks will help … [the] client’s case. But, as an officer of the court concerned in the administration of justice, … [counsel] has an overriding duty to the court, to the standards of … [the legal] profession, and to the public, which may and often does lead to a conflict with … [the] client’s wishes or with what the client thinks are his [or her] personal interests. Counsel must not mislead the court, … [counsel] must not withhold authorities or documents which may tell against his [or her] clients but which the law or the standards of …[the legal] profession require … [counsel] to produce.7

The ethical rules regulating barristers in Australia set out the duty to inform the court of relevant authorities in the following way: A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of: (a) any binding authority, (b) where there is no binding authority any authority decided by an Australian appellate court, and (c) any applicable legislation, known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.8 6. Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993; 3 WLR 1666. 7. Rondel v Worsley [1969] 1 AC 191, 227-228. These different duties are reflected in the way oral legal submissions are made before courts, tribunals or arbitral bodies. A legal advocate will say “it is submitted on behalf of the Appellant …” rather than saying “I believe that …”. It is not necessarily the personal view of the advocate on the current state of the law that must be expressed in court. Instead an advocate is required to put forward the best possible arguable legal case on behalf of her or his client. The advocate might think a submission to be legally weak, but if it is legally arguable and the best possible argument available to her or his client then the submission may have to be made before the court. 8. Legal Profession Uniform Conduct (Barristers) Rules 2015, Rule 29. Rule 19.6 of the Australian Solicitors Conduct Rules 2012 is substantively identical.

[2.40]

Preparing your written and oral submissions

35

Trying to ignore cases against them is therefore not an option available to barristers in court and nor is it an option for students in a moot. Case authorities standing in the way of your moot submissions must, consequently, be directly addressed and the sooner you and your moot partner begin researching arguments that will allow you to distinguish, or to persuade the moot court not to follow, the opposing case authorities, the better. As you are undertaking your research, try to always ask yourself “why” an appellate court should accept your legal arguments. It is common for students trained in the Common Law tradition to only look for case authorities directly on point. Finding such authorities is certainly very important. One difficulty, however, with appellate advocacy is that the higher the court before which you are notionally making submissions, and the lower the court which decided the earlier decision that you are hoping to rely upon, the more you have to ask yourself why, in principle, should the court hearing the appeal follow the earlier decision. As noted earlier, the High Court of Australia is not bound by its own previous decisions, let alone decisions of lower courts in Australia or from other Common Law jurisdictions. The best oral submissions combine arguments based on precedent with arguments based on principle. Will following the earlier decision ensure coherence amongst different legal rules? Would departing from an established line of authority undermine related areas of law or conflict with the underlying principles of the area of law raised by the moot topic? Your legal research should incorporate research upon such issues of principle. Secondary legal sources such as text books and law journal articles are often good places to look for such principled submissions. Take care, however, when using secondary sources. Always make sure you check the footnote references before relying on a secondary source. It is remarkable how intellectually shallow or speculative some footnotes are in journal articles and text books. The value of a journal article or a text book is only as great as the quality of the research upon which the article or book is based. Also, be careful to avoid using principled or policy based arguments without also relying on supporting

36 Ch 2 Appellate Advocacy

[2.40]

judicial precedent. Invoking “the vibe” without at least some judicial support derived from prior decisions is almost certain to fail. Written outlines of submissions [2.45] The moot rules that apply to your moot may require you to prepare and exchange a written outline of your submissions. You must follow any formatting or other requirements applicable to written outlines set out in the moot rules. We offer below some general advice regarding written outlines of submissions which should only be considered if they are not in conflict with the applicable mooting rules. The written outline should set out in a concise and systematic manner all of the relevant legal rules and case authorities that the moot court will need to be aware of in order to decide the moot. The written outline of submissions needs to set out in summary form all of the elements of the relevant legal rules including those that are not in contention between the parties. If your written outline is comprehensive and systematic then you can refer to it in your oral submissions and use it to avoid having to waste valuable time in your oral submissions dealing with uncontentious issues or case authorities in your oral submissions. For example, a relevant statutory provision or common law rule may set out a number of requirements that the appellant must satisfy in order to succeed in the moot. The written outline should briefly set out all of these requirements and the relevant case authorities. Only one of those requirements, however, may be in contention in the moot. In your oral submissions you are entitled to say to the moot court: There are three requirements that must be satisfied in order for the appellant to succeed on this submission. These elements are set out in our written outline at section …. The first two requirements do not appear to be in contention between the parties. I will therefore confine my oral submissions to the third requirement as it is upon this requirement that the case will ultimately turn.

In this way you avoid having to waste valuable time in your oral submissions on issues that are not in dispute between the

[2.50]

Preparing your written and oral submissions

37

parties and you can focus your attention on making more detailed oral submissions on the main issues in contention in the moot. Subject to the rules of the moot, written outlines should also follow the “best evidence” rule, ie your outline should give priority and prominence to the primary legal sources that are most authoritative and most directly relevant. For example, binding decisions of superior courts that are most directly relevant should be given prominence and you should include pinpoint references within these primary sources. The written outline should also (subject again to the moot rules) set out the jurisdictional and procedural issues referred to earlier including the powers of the court hearing the appeal, the orders sought and issues related to costs, etc, where relevant. Preparing your oral submissions [2.50] As your research takes you deeper into the relevant legal issues, you must always remember to stand back and also reflect on the bigger picture. Mooting is ultimately about persuading other human beings. Confusing people with a mass of complex materials that cause you to lose sight of the fundamental issues at stake is unlikely to persuade them. Remember also that mooting is a team activity. Your mooting partner is an important sounding board as you prepare your oral submissions, just as you are when your partner is preparing her or his submissions. Do not be shy about presenting your submissions before your partner and invite your partner to play the role of devil’s advocate, challenging your submissions whenever they appear to be weak. Weaknesses that you should be on the lookout for include factual weaknesses (for example, some important factual element might be missing from the moot topic), logical weaknesses (for example, the propositions that your partner may be intending to advance may not logically follow from each other) and legal weaknesses (for example, there may be some important binding decision that stands in the way of your partner’s submissions). Always ask whether the submissions being made are reasonable. If the moot court’s acceptance of your partner’s submissions will create practical or legal problems then the court will be unlikely

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to accept them. Is there some way of qualifying your team’s submissions to avoid such problems while still winning the legal argument? The most persuasive oral submissions are almost always those that the moot adjudicator feels are the most reasonable. Practising in front of your partner also gives you the opportunity to address issues of style. Are you speaking too quickly? Do you waive your hands around in a distracting way? Now that smart phones are invariably able to record video we strongly recommend that you record video of your practices and watch the video to see, for example, if you are speaking too quickly or doing things with your hands that will distract an adjudicator. You will often be your best critic so videos can be extremely helpful. In terms of speaking too quickly, remember that the object of mooting is to persuade. You will struggle to persuade someone if that person is struggling to keep up with oral submissions delivered at high velocity! All of these issues can be improved upon by practising before your partner. If you have prepared for your moot properly you will be fully aware of the strengths and weaknesses of your case and you will have anticipated the main arguments that your opponents will be planning to put against you. If the rules of the moot require the exchange of each side’s written submissions in advance of the moot then there should also be time before the moot to do additional research on the cases and other authorities upon which your opponents rely in their written submissions. If there is time then you should, prior to the moot, check all of the references relied upon by your opponents and, if you haven’t already done so, you should try to distinguish or otherwise undermine the force of their legal arguments. Adjudicators in moots generally reward students who are responsive in a moot to the arguments advanced by the other side. Common challenges in presenting oral submissions [2.60] There are some common obstacles in moots that we have seen students stumble over while mooting. We set out below some suggestions that we have found to be helpful over the years in guiding students to avoid many of these potential pitfalls.

[2.65]

Preparing your written and oral submissions

39

Writing out in full the oral submissions that you plan to make [2.65] It is understandable for students who are nervous about appearing in a moot to want to write out their oral submissions in full. There are, however, a number of dangers that arise if you rely on a detailed script for your oral submissions. First and foremost, moot adjudicators don’t like being lectured at. Good adjudicators instead hope to engage in an intellectual dialogue with student advocates on the legal issues and problems raised by the moot topic. A good moot adjudicator will try to initiate this sort of dialogue by asking questions. Responding directly and thoughtfully to questions asked by adjudicators is extremely important part of what makes a mooter persuasive. A written script can often become an obstacle to engaging in this form of dialogue with the moot bench. Students who use scripts often struggle to answer questions asked by adjudicators. A script makes it more difficult to maintain eye contact with the bench. But it is not just eye contact that is likely to suffer if you only have a detailed written script. One of the worst things a student can do in a moot is respond to an adjudicator’s question with “I will be dealing with that issue later in my submissions, now returning to my current submission”. This form of “moot losing” response to an adjudicator’s question is sometimes the consequence of not wanting to leave your pre-prepared script. If a moot adjudicator asks you a question it is because she or he would like that question answered directly and answered immediately. If you are so nervous that you feel you do need to write out your oral submissions in full then we would recommend that in your written notes, next to your full text oral submissions, you summarise the idea behind each part of your oral submissions with dot points that capture the essence or idea behind each submission. Having your oral submissions set out as dot point ideas that you speak to, rather than read out verbatim, will allow you to respond directly to questions and then, once you have answered each question, you will more easily be able return to the point you were making before the question.

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One benefit of having a script is that it can help in practising your time management skills. Most moots have strict time limits for oral submissions. Reading your script slowly9 and out loud prior to your moot is a good way to check that you will be able to make your submissions within the available time. Remember, however, that you will nearly always be asked questions in a moot. Having point form summaries of your submissions in addition (or instead) of a full script will ensure that you are better able to respond effectively to questions within your allocated time. Responding to questions [2.70] We cannot emphasise enough the importance of responding directly and immediately to a moot adjudicator’s questions. A prerequisite to being able to respond effectively to a question is properly listening to, and fully understanding, the question that has actually been asked by the adjudicator. A common problem, when we are nervous, is to assume that a question being asked relates to something that we have anticipated that an adjudicator might ask us. Students must be careful to resist these sorts of assumptions. Often questions that are asked by adjudicators are different to the questions we expect to be asked. If we are not listening carefully to the actual question being asked by the adjudicator then we risk answering a different question to that which was actually asked. Good moot adjudicators do not take kindly to failures to respond directly to their questions. Try to always begin your response to an adjudicator’s question, wherever possible, with a direct “yes” or “no”. If some qualification is required, offer that qualification after you have responded directly to the question. Moot adjudicators generally like to see the value of their questions being directly acknowledged by student advocates. For example, if an adjudicator asks you a question that points to a weakness in your case (for example, some apparently contradictory judicial 9. As to how fast you should speak, it has been wisely observed that you should slow down to the point that you feel you are speaking too slowly and that will probably be the speed at which you should make your oral submissions.

[2.75]

Preparing your written and oral submissions

41

decision) it is still much better to directly respond to the question with a “yes” or “no” and then to follow that direct response with some thoughtful qualification such as “… although we submit that on the current facts, that case is distinguishable for the following reasons …”. Sometimes an adjudicator will ask you a question which relates to something that your moot partner will deal with. Having mastery of the entire case really impresses moot adjudicators so it is best to say something like: “This issue will be addressed by my learned junior. In summary, what we say on this point is …”. Sometimes offering a detailed response to an adjudicator’s question will throw the structure of your submissions into disarray. In such rare cases it is possible to try to keep the adjudicator happy by giving a short summary response to the adjudicator’s question and then indicating that you will return to the issue raised by the question in more detail later in your submissions. But you should, in our view, still ask the adjudicator whether he or she would like you to move immediately to that submission. Few mooters recover from refusing to go wherever a moot adjudicator wants them to go. Disagreements with a moot adjudicator [2.75] When to concede and when to stand your ground As suggested above, much of what makes an advocate persuasive in the eyes of an adjudicator is making submissions that appear reasonable. If an advocate has a choice between setting out a legal proposition in an unqualified way, or setting out the same proposition with qualifications that avoid unreasonable outcomes, it seems clear that the qualified proposition is likely to sound more reasonable to an adjudicator. It is surprising therefore how often students assume that being a good advocate involves refusing to concede anything in the face of what appears to be hostile questioning from an adjudicator. If you can set out a legal rule in a way that avoids obvious injustice or unreasonableness in the main factual circumstances in which the rule is likely to apply, then an adjudicator is likely to be open to accepting that rule. If you are able to concede to an adjudicator that qualifications to the operation of the rule exist

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which avoid concerns that the adjudicator might have with the rule you are advancing but that this concession does not affect the success of your client’s case, you will have gone a long way towards persuading the adjudicator to accept your submissions. But a good advocate must also know her or his red lines. We have already suggested that when you are preparing for your moot you should constantly ask yourselves what are your most important legal arguments. One of the reasons why you need to know which of your arguments you have to succeed on in order to win your case is that this knowledge will help you to decide when you can safely make concessions and when you can’t concede a point without undermining the case you are advancing. Another common error that student advocates make is to refuse to engage with an adjudicator’s hypothetical questions. Adjudicators do not like it when an advocate responds to a hypothetical question asked by an adjudicator with an answer along the lines that this is not the situation currently before the moot court. The adjudicator already knows this! This is, after all, why the question is hypothetical. A good advocate will respond directly to a hypothetical scenario. Once a direct response has been offered it is then possible to conclude with an observation that, of course, the facts of the current case are different and so the result in this case should also be different. It is possible to make this point but only after you have acknowledged the hypothetical scenario offered by the adjudicator and responded directly to it. The final point we would like to make about responding to questions asked by adjudicators is that moot adjudicators respect and reward advocates who are intellectually honest and brave. If your argument has an obvious weakness then you should have thought about this weakness prior to the moot and researched carefully how you will respond to questions about this weakness. If you have prepared in this way then it is far better that you are open about the weakness to the adjudicator rather than trying to hide it and appearing to be dragged, kicking and screaming, by the adjudicator to the particular weakness. Your persuasiveness will dramatically increase if you

[2.85]

Preparing your written and oral submissions

43

are able to explain to the adjudicator why she or he has a nagging concern about your legal submission but then also explain how that concern can and should be addressed or avoided. Remember, being persuasive is largely just appearing to be reasonable. Appellate advocacy opportunities within Australia [2.80] You should have opportunities to take part in appellate advocacy moots within your law school. We would also encourage you to participate in one of the number of excellent national appellate advocacy moot competitions. Australia’s largest national mooting competition in 2016 was the Hon. Michael Kirby Contract Law Moot Court Competition, which is hosted by Victoria Law School in the College of Law and Justice at Victoria University. In 2016, 36 teams from 22 different universities competed in this four day competition. You might also consider participating in the QUT Torts Law Moot which is held annually at the Queensland University of Technology. For those students with an interest in public law, there is also the Sir Harry Gibbs Constitutional Law Moot Competition which in 2016 was hosted by the Melbourne University Law Students’ Society, in collaboration with the Australian Association of Constitutional Law and the Australian Government Solicitor. Each of these competitions will give you a wonderful opportunity to develop your confidence and your written and oral advocacy skills Concluding observations [2.85] In our many years of mooting experience we have come to the conclusion that the most successful student advocates are those who can engage in a thoughtful and intelligent conversation with their moot adjudicators about the most important factual and legal issues raised by the moot problem. Knowing what those most important issues are in advance of the moot is therefore absolutely essential. In order to be as persuasive as possible what you are, therefore, required to do is to carry out detailed and intelligently focussed legal research prior to the moot, and to reflect and discuss with your moot partner prior to the moot these important issues and to work out

44 Ch 2 Appellate Advocacy

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a way to respond directly to the likely questions that an adjudicator is likely to ask you about the main points in contention in the moot. Appellate advocacy, because it proceeds from an agreed set of facts or decision of a court below, tends to focus more on the competing legal rules, decisions, policy and practical considerations that arise from those agreed facts or from the decision being appealed from. The next four chapters focus on communication skills and advocacy in moots where facts are also in dispute. We will consider these important forms of legal communication and advocacy from the perspective of national and international negotiation and mooting competitions in which we have successfully guided students over many years. Our focus will now become much more detailed as there are important differences in the law and the context of these various competitions.

3

Merits Review, ADR and “New Advocacy” Peter Billings

[3.10]

MOOTING AND ADVOCACY

....................................... 46

[3.20] [3.30] [3.40] [3.50]

Background ........................................................................... 46 Administrative review before Tribunals .............................. 49 The centrality of ADR ......................................................... 55 Pre-hearing processes and the “new advocacy” .................. 56

[3.60]

ADR AT THE AAT

[3.60]

Legislative and Procedural Framework ............................... 58

[3.70] [3.70]

APPEARING AT THE AAT ............................................. 63 Negotiating Settlements ....................................................... 63

[3.85] [3.85]

PREPARATION FOR THE NEGOTIATION .................. 65 Understanding ADR at the AAT .......................................... 65

[3.90]

Understanding the legal framework, relevant authorities and factual matrix ........................................................................ 67

........................................................... 58

[3.95] [3.100] [3.105] [3.110]

Written preparation — issues, facts and contentions .......... 68 Empathy — Appreciating the other parties’ positions ........ 69 Advocates’ obligations: the “good faith” requirement ....... 70 Advocate’s obligations — the “duty to assist” and model litigant principles .................................................................. 72 [3.115] Effective and appropriate communication in negotiations .... 75 [3.120] Conclusion ............................................................................ 75

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[3.10]

MOOTING AND ADVOCACY Introduction [3.10] Tribunals perform a critical role in the review of government decisions, providing for access to justice and an effective remedy for those persons whose interests are affected by government decisions. Chapters 3 and 4 deal with advocacy in the context of Australian public law and tribunal adjudication, specifically the Commonwealth’s generalist tribunal – the Administrative Appeals Tribunal (“AAT”). The Administrative Appeals Tribunal employs alternative dispute resolution techniques and also occupies the unique position of a merits review body hearing public law appeals de novo (ie, as if the tribunal was the original decision making reassessing all of the relevant factual and legal issues that were before the original decision-maker). Chapters 3 and 4 focus on tribunal advocacy and the mooting competitions organised nationally by the Administrative Appeals Tribunal that require students to develop negotiation and advocacy skills in the merits review context. Background The methods by which we seek to persuade are determined in many respects by the venue in which we appear, by the person who is hearing the dispute, and by the rules which control the method by which the dispute is to be determined.1 [3.20] Adjudication of litigation is the dispute resolution process employed by the courts traditionally and this is reflected in many, if not all, moot competitions which tend to simulate adversarial adjudicative processes. Typically, they afford law students an opportunity to showcase their skills in a mock appellate court. The simulated appeal hearing is characterised by fervent advocacy, on behalf of clients, largely based on case analysis and/or interpretation of legislation/treaties directed to resolving pure questions of law. 1. G Hemsley, “Tribunal Advocacy” (Law Society of South Australia, Committee for Continuing Education, March 1992) at 1.

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Certainly, familiarity with the adversarial system in public and private law litigation is vital, and such moot exercises or competitions have substantial pedagogic value, they: (i) can develop students’ legal research skills; (ii) enhance legal writing and communication skills; (iii) prompt the development of substantive legal knowledge; (iv) require effective collaboration with peers; and, (v) support a participative, learner-centred approach with an emphasis on personal experience and self-reflection.2 However, the Australian justice system is also characterised by non-adversarial (or relatively less formal) forms of managing private law disputes or public law matters. Relevantly, for present purposes, administrative (tribunal) proceedings are of a different nature to civil litigation. The National Administrative Appeals Tribunal Moot competition and its younger sibling – the Negotiating Outcomes on Time (“NOOT”) Competition offer valuable alternatives to the traditional appellate courtbased moot competitions. As will be explained, both competitions afford students an opportunity to develop distinctive advocacy skills in what are, for many students, relatively unfamiliar settings. Both competitions also provide valuable templates for potential advocacy exercises within substantive law courses in law schools. Non-curial options for resolving disagreements, between private parties and between the state and its subjects (including citizens, non-citizens, public interest groups and companies), occupy a prominent place in the overall justice landscape. Australia’s justice system utilises litigation in court as an option of last resort for resolving disputes. Alternatives to court-room adjudication include, alternative/ appropriate dispute resolution (ADR) processes, such as conferencing, mediation, and conciliation (at the Australian Human Rights Commission, for example). 2. See further, A Lynch, “Why do we Moot?” (1996) 7 Legal Education Rev 67; and, A Gillespie, “Mooting for Learning” (2007) (1) Journal of Commonwealth Law and Legal Education 19.

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Indeed, ADR is often legally required before court or tribunal proceedings can commence. Necessarily, it is essential that future (and recently admitted) lawyers receive guidance and support in order to appreciate how best to represent their clients, and to discharge legal and professional obligations, in non-adversarial processes outside court. There are also various forms of Ombudsman and many tribunals, boards and commissions – at Federal and State levels – that address disputes between private individuals and those matters arising between individuals and state. Chapters 3 and 4 are concerned with advocacy before administrative tribunals, and the resolution of administrative law matters arising between the state and individual: where claims are made, and grievances levelled, against the state by citizens and non-citizens. Typically, the crux of these claims is that a person’s statutory rights or interests have been affected by an unfair or incorrect decision made by a government agency.3 The focus here is on the role of the peak federal tribunal - the AAT - and the various processes it employs to address people’s claims. It is the procedures and practices employed by the AAT that distinguish this tribunal from the courts. The purpose of chapters 3 and 4 is to support law students – aspiring advocates - entering the competitions organised annually by the AAT.4 However, its target audience is broader, and it is anticipated that present law students and recently admitted practitioners may benefit by studying the requirements of effective advocacy before the AAT.

3. It should be noted that government agencies can also appeal administrative decisions that are favourable to subjects; for instance, where an “interim” decision-maker, such as the Veterans Review Board, makes a positive decision regarding a person’s eligibility for a service pension, the matter can be considered again in the AAT at the behest of the government. 4. The National Administrative Appeals Tribunal Moot Competition has been running since 2007, prior to which it was a provincial competition for two years. In 2014 the AAT piloted a negotiation competition – Negotiating Outcomes on Time, or “NOOT”.

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Underpinning this chapter is an understanding that advocacy before tribunals is different from advocacy before the courts. Therefore, these chapters aim to: (i) enable readers to appreciate the essential aspects of administrative - merits - review and how this contrasts with civil litigation; (ii) develop the readers’ substantive knowledge and understanding of laws, procedures and policies governing the AAT;5 (iii) develop students’ capacity to prepare a particular case thoroughly, ahead of pre-hearing processes and prior to a hearing at the tribunal. For without detailed familiarity with the facts, and a critical understanding of relevant law, policy, and procedures, a case cannot be presented well; (iv) enhance students’ critical awareness of the distinctive advocacy role that legal professionals are required to play in administrative reviews, and (v) offer guidance on effective written and oral communication skills, adapted and tailored to fit the tribunal setting. Administrative Review Before Tribunals [3.30] The nature and function of tribunals (frequently referred to as “court substitutes”) is quite different to the usual functions of a court. Administrative review tribunals are intended to be independent, user-friendly, alternatives to the court system for resolving matters arising out of government decision-making. In Australia, federal tribunals are, constitutionally, part of the Executive branch; therefore they exercise administrative (not judicial) powers. Strictly, administrative review tribunals are not resolving disputes, but dealing with proper, lawful, public administration. Decisions can have wider import than the claims and counter-claims presented by the parties; for instance, migration decisions are about the makeup of the Australian community. Taxation decisions concern the amount of Commonwealth revenue. Civil aviation (licencing) decisions are underpinned by the promotion of public safety. 5. For a comprehensive account and analysis see D Pearce, Administrative Appeals Tribunal (3rd ed, 2013).

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Considerations of individual justice and the demands of good public administration are to be balanced by tribunals. Accordingly, the statutory objectives underpinning administrative tribunals are exhortations to deal with matters in a fair, just, economical, informal and quick manner, proportionate to the importance and complexity of the matter.6 Therefore, the AAT seeks to ensure that each review proceeds to finalisation in a way that is fair and just but also makes the most efficient use of the resources and time of the parties and the AAT. The statutory aims are commensurate with the objectives underpinning most alternative disputes resolution (ADR) processes.7 ADR processes are used in several Commonwealth and State tribunals that deal with disputes arising between the state and subject; for example, in the Veterans’ Review Board (VRB), Administrative Appeals Tribunal (AAT) and, Queensland Civil and Administrative Tribunal (QCAT).8 The AAT discharges an administrative function: it has jurisdiction to review a wide range of administrative decisions made by Australian government ministers, departments, agencies and other “specialist” tribunals.9 6. For example, Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) s 2A; the Queensland Civil and Administrative Tribunal 2009 (Qld) (“QCAT Act”) s 3 goes further, providing that the Tribunal is intended to promote the values of consistency, openness and accountability in public administration. 7. The objectives that inform the use of ADR at the AAT are that processes will be accessible and resource efficient, resolve disputes as early as possible, produce outcomes that are lawful, effective and acceptable to the parties and the Tribunal, and enhance the satisfaction of the parties (AAT, Alternative Dispute Resolution (ADR) Guidelines (June 2006) ). 8. The Veterans Review Board (which reviews decisions made by Australian Government agencies in relation to statutory entitlements to welfare and compensation) employs procedures that closely resemble ADR processes in appropriate cases. QCAT - Queensland’s “super tribunal” – is statutorily obliged to encourage the early and economical resolution of disputes, including through ADR where appropriate (QCAT Act 2009 s 4(b)). 9. The Commonwealth amalgamated four merits review tribunals via the Tribunals Amalgamation Act 2015 (Cth): on 1 July 2015 the AAT merged with the Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal. In general, the review processes that applied in the AAT,

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The bulk of the Tribunal’s workload arises from applications about decisions in the following areas; child support, paid parental leave, family assistance and social security, migration and refugee visa decisions, taxation, veterans’ affairs and federal employees’ compensation. Other significant jurisdictions include; freedom of information, national security, and bankruptcy. The AAT also frequently deals with regulators, in the migration and civil aviation fields, among others.10 Regulatory decisions have a strong public interest element, with decisions taken to protect the public from those unfit or not qualified to obtain or retain a statutory licence or privilege. Administrative review is an oversight and accountability mechanism in respect of a wide range of government decisions affecting the rights and interests of citizens and non-citizens. “Merits review” is often used as an expression to explain the basic function of administrative review tribunals. Merits review “extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision.”11 The object of review is to determine, substantively, whether the “correct or preferable” decision had been made: “correct” meaning a decision rightly made, where there is only one possible outcome as a matter of law, and “preferable” in instances where there are discretionary considerations and there are a range of permissible outcomes.12 MRT, RRT and SSAT prior to 1 July 2015 have been preserved in the amalgamated AAT. See further, AAT “Amalgamation of tribunals” 10. Migration Agents Registration Authority (MARA); and, Civil Aviation Safety Authority (CASA). 11. Shi v Migration Agents Registration Authority (MARA) (2008) 235 CLR 286; 82 ALJR 1147; 390 ALR 422 [140] (Kiefel J), describing the function of the Administrative Appeals Tribunal, but the definition applies equally to other federal administrative tribunals. 12. See Shi v Migration Agents Registration Authority (MARA) (2008) 235 CLR 286; 82 ALJR 1147; 390 ALR 422 [140] (Kiefel J); and, Visa Cancellation Applicant and Minister for Immigration and Citizenship, Re [2011] AATA 690 [53] (Downes J).

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In discharging the core function of merits review, administrative tribunals conduct hearings “de novo”, meaning a review of the original administrative decision afresh. There is an independent assessment of the original decision undertaken on the basis of relevant material that can include new, additional or different material presented to the tribunal.13 The contours of a tribunal’s power to review decisions are governed by statute. The AAT has been said to “stand in the shoes of the original decision-maker” because it may exercise all the powers and discretions of the original decision-maker,14 and the tribunal’s decision is taken to be that of the original decision-maker.15 Importantly, administrative review tribunals can affirm, vary, or set aside and substitute, the decisions under review; consequently they have more than a supervisory role. This is to be contrasted with the strictly limited powers of the courts when carrying out judicial reviews. Procedurally, the AAT is more flexible than courts: it has been characterised as “moving on a scale between formality and informality.”16 This reflects the statutory injunction to conduct proceedings with as little formality and technicality … as the requirements of the Act and other relevant legislation and a proper consideration of the matters before the Tribunal permit.17

Therefore, while hearings follow the basic structure used in court proceedings, procedures are capable of being adapted to

13. Evidence of matters occurring after the original decision may be taken into account unless the review is limited to a particular point in time (see Shi v Migration Agents Registration Authority (MARA) (2008) 235 CLR 286; 82 ALJR 1147; 390 ALR 422 [143] (Kiefel J)). 14. Shi v Migration Agents Registration Authority (MARA) (2008) 235 CLR 286; 82 ALJR 1147; 390 ALR 422 [134] (Kiefel J) citing s 43(1) AAT Act 1975 (Cth). 15. S 43(6) AAT Act 1975 (Cth). 16. The Hon Justice G Downes AM, “The Tribunal Dilemma: Rigorous Informality” (17 September 2008) at 11 17. S 33(1)(b) AAT Act 1975 (Cth).

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cater to the type of case and the parties’ circumstances in order to ensure there is an effective hearing in which all relevant evidence is elicited.18 There is no one level of formality or informality which is appropriate for all cases, it turns on the exigencies of the particular case.19 Accordingly, it is important that advocates “understand the reasons why procedures are adapted in particular circumstances and work with the Tribunal to make sure that they are effective.”20 The factors that influence the approach taken by the Tribunal in a hearing include; legal representation, expert evidence, cultural and linguistic background of a party, literacy and educational factors, and disability. For example, in a social security matter, where the applicant is elderly, speaks in broken English and is legally unrepresented, the hearing will be conducted differently, more informally and sympathetically, relative to a taxation matter where both applicant and the Australian Tax Office may be represented by experienced legal counsel. Even in instances where both parties are legally represented cases are conducted differently from court proceedings. As a former President of the AAT has explained: The [Administrative Appeals] Tribunal often sits around a table with the parties. A degree of formality is still preserved. Even the parties expect some formality. After all, important matters to them, are at stake. They do not want their rights determined in a casual conversation. Formality is relaxed enough, however, to avoid parties, particularly unrepresented parties, being put off. […] Even cases with senior counsel representing all parties are not quite the same as in courts. They may look very similar, but I still see the surprise on the face of counsel when I reject a question that has not been objected to, or tell counsel that I will admit evidence, but if it is in 18. The Hon Justice G Downes AM, “Practice Procedure and Evidence in the Administrative Appeals Tribunal” (5 May 2011) 19. As the AAT noted in Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113, 17. 20. The Hon Justice D O’Connor, “Appearing before the AAT: a Nonadversarial Approach” (10 May, 1999) at 3,

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contest he will need to supplement it, or interrupt submissions to tell counsel what I want the submissions to address […].21

Although the AAT’s hearings are flexible and may be relatively informal “its manner of informing itself and deliberating has more to do with curial procedures than with the methods of the executive”.22 Accordingly, while there is procedural/evidential flexibility, several aspects of the AAT’s procedures bear the hallmarks of an adversarial forum: for example, • parties are usually entitled to legal representation; • generally, public hearings are held; • natural justice must be afforded to the parties; and • reasons given either orally or in writing.23 In so providing for administrative (merits) review, the Australian parliament can be seen to have complied with the principles laid down in art 14 of the International Covenant on Civil and Political Rights […] which declares entitlement to a “fair and public hearing by a competent, independent and impartial tribunal established by law”.24

Like the courts, tribunals may employ various alternative procedures, in addition to a hearing, in discharging their basic function. The AAT makes extensive use of ADR to enable parties to resolve their dispute reflecting the statutory obligation to provide economical, informal and quick processes, while being procedurally fair and substantively just. Other federal tribunals, such as the Veterans’ Review Board which considers war veterans’ benefits and compensation claims 21. The Hon Justice G Downes, “The Tribunal Dilemma: Rigorous Informality”, supra, n 16 at 11. 22. The Hon Justice G Downes, “The obligation to assist: Model litigants in Administrative Appeal Tribunal proceedings” (26 August, 2009) at 2

23. AAT Act 1975 (Cth) ss 32, 34J, 35(1), 39, 39AA and 43(2) (2A) (2B). A party to a proceeding in the Social Services and Child Support Division may be represented by another person with the Tribunal’s permission (s 32(2)). 24. Re Hennessy and Secretary, Department of Social Security (1985) 7 ALN N113, N117.

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– also utilize ADR. So too State tribunals, such as the Queensland Civil and Administrative Tribunal (QCAT); indeed, at QCAT ADR is a vital part of its operations with conferencing a mandatory requirement for administrative matters.25 It is to ADR processes, and the “new advocacy” that attention now turns. The Centrality of Alternative Dispute Resolution (ADR) [3.40] The majority of applications (almost 80%) lodged with the AAT are finalised without a decision on the merits following a hearing.26 But it should not be inferred that 80% of matters were settled following ADR. The figure includes applications finalised, in accordance with terms of agreement lodged by the parties,27 applications withdrawn by the applicant,28 and applications dismissed by the Tribunal.29 Even so, ADR is a core feature of the Tribunals’ processes, so advocates must appreciate the theory, techniques and practices of the “new advocacy”.30 More specifically, advocates need to grasp: • the basic theory of ADR processes; • how preliminary – ADR - processes fit within the Tribunal’s management of cases and legislative framework; • the rules that govern use of ADR as a means of resolving matters; and • develop an appreciation of the skills and techniques required for different ADR models. 25. See QCAT Act 2009 ss 4(b), 69 and 75; and, QCAT, Compulsory Conferences – An Overview 26. AAT, 2014-15 Annual Report at 3. 27. AAT Act 1975, ss 34D and 42C. 28. AAT Act 1975, s 42A(1A). 29. AAT Act 1975, s 42A and 42B. 30. D Cooper, “The “new advocacy” and the emergency of lawyer representatives in ADR” (2013) 24 ADRJ 178, 179, citing J Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UTP, 2008) Ch 5).

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Moreover, there are overarching legal professional and ethical responsibilities incumbent on the representatives of parties to an administrative review application before the AAT. Pre-hearing processes and the “new advocacy” [3.50] In recent history, Australia has witnessed an expansion in the frequency and variety of ADR processes within courts and tribunals. ADR is increasingly used in administrative law proceedings.31 ADR can reduce the duration of legal proceedings, thereby reducing costs to the parties and the public in the administration of justice. Additionally, parties tend to favour resolution of a matter by ADR processes over a more formal, public, hearing, removing their desire to appeal or otherwise complain about the decision, and again saving public resources. Where disputes arise between the state and subjects there are a variety of alternative processes that can be employed, where appropriate, to manage and resolve that matter without recourse to a full hearing. Administrative tribunals (and courts) usually require people to try ADR processes before proceeding to a more formal hearing. Tribunals make significant use of ADR techniques to resolve disputes or “case manage” matters by clarifying and narrowing the issues in dispute. As discussed later in this chapter, ADR processes are not always appropriate for administrative review matters; the use of ADR must be approached and managed carefully in matters that concern the rights and interests of the individual and public administration by the state.32 At a general level of abstraction, ADR may be said to encompass processes that entail a third person offering professional and 31. For example, ADR in the Federal Court and Federal Circuit Court is governed by the Civil Dispute Resolution Act 2011 (Cth). Parties must take “genuine steps” to resolve their civil dispute prior to instituting proceedings in either court. Genuine steps mean a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature of the dispute (s 4). 32. Hon Justice A Wilson, “QCAT Hybrid Conferencing Processes; ADR and Case-Management” (21 July 2011)

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independent assistance in an informal setting, to facilitate a solution to the dispute, which is acceptable to the parties. However, there is little consistency in how ADR terms are used. Even when mentioned in Commonwealth legislation, ADR processes are not clearly defined.33 ADR processes, which are usually private and confidential (“without prejudice”), can involve: (1) an independent third party, typically a court/tribunal registrar, assisting the parties by identifying and clarifying the relevant issues (if not fully resolving matters) through conferencing and/or mediation (facilitative process); (2) an independent third party, such as a tribunal registrar or appointed ADR practitioner, assisting and advising parties through conciliation by, inter alia, making suggestions for terms of settlement and actively encouraging them to do so in accordance with law (facilitative/advisory process); (3) an independent third party, such as a tribunal member, trying to resolve the matter by giving non-binding advice (expert opinion) on complex factual disputes (and the likely outcomes) through a case appraisal, or on factual/legal disputes (and their likely outcomes) through a neutral evaluation process (advisory process); and (4) arbitral proceedings, that can determine how disputes will be resolved (determinative process).34 Reflecting on the potential benefits of ADR in the case management of civil and administrative matters, Justice Wilson, former QCAT President, has observed: ADR offers parties the opportunity to develop solutions for their disputes to which they contribute to and have a say. This is in contrast with the traditional adversarial process in which parties largely surrender the outcome of their proceedings to an independent 33. See, Commonwealth, Attorney-General’s Department, Your Guide to Dispute Resolution (2012) for an overview of some ADR processes. 34. Members of the AAT can conduct mediations and conciliations, although this is primarily undertaken by conference registrars. Arbitration is not an available ADR process at the AAT.

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arbiter, are often obliged to adopt polarised positions and sometimes express a concern that the true nature of their dispute has been warped, or diverted from its essential elements.35

ADR AT THE AAT Legislative and Procedural Framework [3.60] The Administrative Appeals Tribunal Act 1975 (“AAT Act”) makes specific provision for ADR in the resolution of administrative review applications. ADR is a core element of the Tribunal’s review process.36 ADR processes are conducted in private with only the parties, their representatives and a tribunal officer present. The AAT Act prevents evidence of anything said or done during ADR processes at the AAT from being used in any court or tribunal proceeding, subject to limited exceptions.37 Confidentiality is an essential feature of ADR processes, as the AAT states: Maintaining confidentiality encourages meaningful participation and can promote good outcomes. Respecting confidentiality encourages a full and frank discussion between the parties about the issues in dispute and this can assist in the resolution or narrowing of the issues.38

The President of the Tribunal may direct that a proceeding, or part of a proceeding, be referred for an ADR process and the legislation includes a requirement that parties act in good faith in ADR (see further, below).39 In order to give effect to these legislative objectives the AAT has published ADR “process models” that clearly defines each process and describes how each form of ADR is conducted in the Tribunal. 35. QCAT Annual Report 2009-2010, at 4. 36. AAT Act 1975 (Cth), s 3(1). 37. AAT Act 1975 (Cth), s 34E. 38. AAT, Confidentiality in ADR Processes: Guidelines for Applicants, Respondents and Representatives (17 April 2014) [citation omitted]. 39. AAT Act 1975 (Cth), ss 34A and 34B.

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The guidelines serve an educative function, enabling parties to readily comprehend ADR procedures, and also promote consistency in practice across the Tribunal.40 ADR processes: […] can be used for a range of purposes. While the primary goal may be to attempt to reach an agreed outcome in a matter, ADR processes can also help to clarify and narrow the issues that are in dispute between the parties. Settling a matter in its entirety is not the only possible outcome of an ADR process.41

By way of illustration, conferencing is one of the processes available and it is used as part case management tool and part ADR process. Indeed, conferencing has been described as “the ADR mechanism of greatest use in the Tribunal.”42 The AAT defines conferencing as: [a] meeting conducted by a Tribunal member or officer of the Tribunal (conference convenor) with the parties and/or their representatives. Conferences provide an opportunity for the Tribunal and the parties to discuss and define the issues in dispute; identify further evidence that needs to be gathered; explore whether the matter can be settled; and discuss the future conduct of the matter, including referral to further ADR processes or progress to a hearing, where settlement is not possible. Conferencing may have a variety of goals and may combine facilitative and advisory dispute resolution processes.

The four main stages of conferencing are: preparation and explanation of the process, identification of the issues in dispute, case management and exploration of options for resolution. Resolution of a matter through conferencing provides a more timely and cost-effective outcome than by way of a formal hearing. 40. See AAT, Alternative Dispute Resolution (ADR) Guidelines (June 2006) ; and, for details about the ADR process models 41. The Hon Justice G Downes AM, “Alternative dispute resolution at the AAT” (2008) 15 Australian Journal of Administrative Law 137, at 138. 42. Deputy President P Hack, “Experiences of ADR in the AAT: Current Practicalities and Future Developments” (28 August 2010) at 4

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Conferencing enables parties to better understand their respective positions. It enables parties to explain their position and affords individuals a chance to ventilate grievances directly with the state’s representatives in an informal setting and without prejudice. Moreover, it can yield a bespoke outcome rather than one imposed externally, thereby promoting party satisfaction.43 At least one working day prior to a conference represented applicants and the decision-maker are required to write and exchange a brief statement setting out the issues that the applicant and the respondent consider to be in dispute.44 Subsequently, and prior to a(ny) second conference the parties may be directed by the tribunal to lodge a Statement of Facts and Contentions (this is not a repetition of the issues paper), expert reports and witness statements. The AAT’s General Practice Direction sets out the guidance for these written submissions, stipulating that the Statement must set out: (a) the issues in dispute; (b) the essential facts that are relevant to those issues; and (c) the contentions to be drawn from those facts, including references to relevant legislation and case law.45 After conferencing a tribunal registrar, in conjunction with the parties, will explore other ADR options in circumstances where they are likely to assist in the efficient and effective management of the case: they are not an obligatory extra step.46 43. Deputy President P Hack, “Experiences of ADR in the AAT: Current Practicalities and Future Developments” ibid., at 5. See also, Justice Wilson, “QCAT Hybrid Conferencing Processes; ADR and Case-Management” supra, n 32 at 4. 44. AAT, General Practice Direction (30 June 2015) , at 12 [4.24]. 45. AAT, General Practice Direction (30 June 2015) , at 13 [4.30]-[4.31]. 46. Ibid, at 13 [4.33]; and see the Hon Justice G Downes AM, “The Administrative Appeals Tribunal: Building on 30 years of Independent

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Conferencing and mediation has been a feature of the AAT’s processes since 1993, but the available ADR options were expanded significantly in 2005, by legislative amendment, and include conciliation, case appraisal and neutral evaluation.47 As to which of the ADR processes may be best suited to the resolution of a particular matter, the AAT has referral guidelines setting out considerations to be borne in mind.48 These considerations include; the capacity of the parties to participate, the attitude of the parties, nature of the issues in dispute, and likelihood of reaching agreement or reducing the issues in dispute. If, subsequent to conferencing, an alternative process is agreed to by all parties and employed, strictly, no written submissions are required. However, parties will often have prepared a Statement of Facts, Issues and Contentions, lodged witness statements and medical reports prior to mediation/ conciliation. ADR processes offer a quicker form of resolving matters, and the possibility of greater participation, for aggrieved individuals, in the review process. Relatedly, there may be greater satisfaction with the process and outcome from a negotiated resolution. While the potential benefits in resolving matters through ADR are clear, the application of such processes is not always straightforward in matters between the state and individual. Though not insurmountable, there may be several barriers, including structural conflict, as a former Deputy President (Philip Hack SC) of the AAT has observed: “Intuitively it does not seem that the individual would be in any position to try and negotiate with the might of the state.”49 But in practice the involvement of an independent ADR practitioner who is a member or officer of the AAT can help to address issues relating to actual and perceived imbalance of power between subjects and the state. Merits Review” (27 July 2006) at 10. 47. Compulsory conciliations take place in workers’ compensation matters where the applicant is represented. 48. AAT, Alternative Dispute Resolution (ADR) Guidelines (June 2006). 49. Deputy President P Hack, “Experiences of ADR in the AAT: Current Practicalities and Future Developments” supra, n 42 at 9.

62 Ch 3 Merits Review, ADR and “New Advocacy”

[3.60]

Another barrier, evident in regulatory matters, is that parties may come to the Tribunal with an adversarial mind-set. Regulators will be risk averse, wishing to defend their decision in the public interest, “unmoved by arguments in negotiation that focus on commercial or personal consequences of their decision, whereas that will generally be the concern of an applicant.”50 Additionally, and most importantly, negotiated settlements are constrained by legal requirements for valid decision-making. A settlement must be in accordance with law, therefore the AAT will not reflect the terms of a settlement, in a new decision, if it is not persuaded that the settlement is within the power of the AAT and appropriate.51 So, for example, representatives from government bodies cannot agree to exercise discretionary powers in terms that travel beyond the express or implied limits of the governing legislative framework. However, legal requirements for valid decisionmaking will often leave considerable latitude for settlements on agreed terms. The AAT addresses individuals’ grievances about administrative decision-making but the Tribunal’s influence is not confined to the resolution of individual cases. Merits review strengthens government accountability52 and exerts a normative influence establishing standards of “good administration”. Accordingly, objections may be raised to privately negotiated outcomes in matters of public administration/public interest because it lessens the “normative” effect of the tribunal. Indeed, negotiation may be unsuitable in certain cases: there may be important points of law/policy arising or complex 50. Deputy President P Hack, “Experiences of ADR in the AAT: Current Practicalities and Future Developments” supra, n 42, at 10. 51. AAT Act 1975 (Cth), s 42C. 52. The Hon. Justice B Preston, “The Use of Alternative Dispute Resolution in Administrative Duties” (9 March 2011)

Competition”