Private Law Research and Policy Group

The Private Law Research and Policy Group was established in 2006 to foster research and scholarship in the area of private law. We define ‘private law’ broadly to mean the legal rules and principles that govern the relationships between individuals in society, or between individuals and the state in those situations where the state is afforded no greater privileges than a private person.

Members of the Private Law Group are committed to rigorous legal research and applied legal solutions. We are particularly interested in highlighting research into policy and law reform in the area of private law. The group has more than 25 members and associates with expertise across the full breadth of perspectives in private law.

Projects
Fiduciary obligations and robo advice 

UNSW Law Professor Simone Degeling and Senior Lecturer Jessica Hudson published their article ‘Financial robots as instruments of fiduciary loyalty’ in the Sydney Law Review in 2018.  

Retail financial consumers increasingly interact with financial services providers via a financial robot that is driven by an algorithm or other mathematical model ('robo financial advice'). In this sector, the focus of industry and legal participants is on statutory regulation under the Corporations Act 2001 (Cth) and associated class orders and guidance issued by the Australian Securities and Investment Commission. 

In their article, Professor Degeling and Jessica Hudson argue that despite compliance with this regime, significant legal risk remains. Equity continues to operate in a domain where fiduciary obligations, and attendant poorly managed fiduciary conflicts, arise systemically. The article considers the application of the fiduciary norm to robo financial advice. In doing so, it explores the interaction of equitable principle and statute, and pursues a deeper understanding of the application of equitable fiduciary principle to robo financial advice.  

Background 

  • UNSW Law Professor Simone Degeling and Senior Lecturer Jessica Hudson presented their research to the highly prestigious North American Fiduciary Workshop held in June 2017 at the University of California, Los Angeles 
  • Professor Degeling and Jessica Hudson presented an invited plenary paper at the 34th Annual Conference of the Banking and Financial Services Law Association in September 2017 
  • Law Society of NSW President Doug Humphreys OAM and UNSW Law Dean Professor George Williams AO organised a panel discussion at the Law Society on 13 June 2018 to discuss equitable fiduciary obligations and robo advice; panellists were Jessica Hudson; Alistair McKeough, Managing Director, Whittens & McKeough; and Simun Soljo, Managing Associate, Allens; and the moderator Professor Degeling

Research by members of the Private Law Research and Policy Group has been supported by the Automic Group (formerly Whittens & McKeogh) since 2017.

Statutory interpretation in private law

Statutory Interpretation in Private Law (Federation Press, 2019), edited by Professor Prue Vines, Co-Director, Private Law Research and Policy Group, and Dr Scott Donald, was published recently. It includes chapters by Chief Justice Tom Bathurst, Justices Mark Leeming and Ashley Black, Professors Prue Vines, Simone Degeling, Brendan Edgeworth and Lyria Bennett Moses from UNSW Private Law, as well as by other distinguished private law scholars from Australia and the United Kingdom.

In the Queensland Law Reporter, B Kabel of Counsel described it as ‘…an engaging and, in many instances, thought-provoking read … a valuable addition to any legal practitioner practicing in private law…’. It has already been cited in court.

Background 

  • The book was a result of a symposium held by the Private Law Research and Policy Group on Statutory Interpretation in Private Law in October 2017 

Research by members of the Private Law Research and Policy Group has been supported by the Automic Group (formerly Whittens & McKeogh) since 2017. 

Equity and intellectual property

The Journal of Equity (Professor Simone Degeling, General Editor) published papers from the journal’s Annual Conference 2018. Speakers/contributors were all leaders in field of intellectual property: Justice Stephen Burley and Angus Lang presented on ‘Ongoing patent infringement: is injunctive relief an inevitable outcome?’; Ben Chen discussed ‘Equitable relief in transnational intellectual property disputes’; Dr Ben Kremer spoke about ‘Equity and monetary remedies for patent infringement: the development of the account of profits’; and The Hon William Gummow AC presented on ‘Bars to relief’.

Background 

  • UNSW Law in partnership with the Journal of Equity held the journal’s Annual Conference in March 2018, on the theme of Equity and Intellectual Property, at Whittens & McKeough’s Park Street offices with an invited audience of leading intellectual property barristers, academics and members of the judiciary

Research by members of the Private Law Research and Policy Group has been supported by the Automic Group (formerly Whittens & McKeogh) since 2017. 

Apology Ordinance

Professor Prue Vines’ groundbreaking work on apologies has had a major impact on thinking about apologies and apology-protecting legislation around the world. In particular, she has contributed to the development of apology-protecting legislation such as the Apology Act (Scotland) 2016, the apology provisions of the NSW Civil Liability Act 2002 and the latest apology-protecting legislation, the Apology Ordinance 2018 (Hong Kong).

Apologies are a significant issue impacting liability, and the right use of apologies can be a major risk-alleviating factor in a range of commercial and medical litigation or possible litigation, including insurance. Professor Vines’ expertise in how apologies impact, how they operate in respect of evidence, as admissions or not, and their value in reducing litigation has led to her being sought-after as an advisor by a range of bodies, from companies to parliaments.

Research by members of the Private Law Research and Policy Group has been supported by the Automic Group (formerly Whittens & McKeogh) since 2017.