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Australian Academy of Law essay prize winner revealed
An Oxford University law professor and his former student have jointly won the Australian Academy of Law’s annual essay prize and been awarded $10,000.
Lauren Croft
This year’s competition addressed the issue of the increase in mass torts and class actions in Australia – and Oxford Professor Andrew Higgins and his former student, John Yap, jointly won the 2023 competition by arguing against the question.
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The question asked entrants to consider whether the growth of such private litigation in Australia and elsewhere could “be described as an evolutionary form of ‘privatised regulation’, gap-filling where the state and its regulators have not fully or properly controlled or deterred behaviours, or protected and compensated affected person. To what extent is it successful in that regard? Should it be encouraged? Why or why not? Give examples.”
The winning essay disagreed with the possible premise of the question and sought to “clear the field” to make a different argument.
While they accepted that the description of class actions as “privatised regulation” has gained traction in Australia and elsewhere, Professor Higgins and Mr Yap rejected the idea.
“The description is inaccurate and distorts the true relationship between regulation, tort law and procedural law. ... tort law cannot be described as a form of regulation because the two are different modalities of law, and the class action procedure does not change this,” the pair said in their winning 8,000-word essay.
Professor Higgins is a practising barrister in Victoria, Oxford University professor of civil justice systems at the law faculty, and a Fellow in Law at Mansfield College. He teaches and convenes the BCL/MJur Principles of Civil Procedure course and the FHS Civil Dispute Resolution course.
Mr Yap has just completed his Oxford bachelor of civil law and currently teaches contract law at Mansfield College while going through the process of qualifying as a barrister in London. During his studies, he developed a keen interest in private law remedies and the principles of civil procedure.
“Andrew taught me in these areas, and I hoped that my thoughts on the current academic debates would complement his expertise and experience in class actions and mass torts litigation,” he said.
“I am honoured that he agreed to co-author the essay with me.”
Professor Higgins said Mr Yap was an extraordinarily bright student who always has useful insights into whatever area of law he turns his mind to.
“My main areas of academic research and teaching are civil justice systems and tort law. Also, as a practising barrister, I specialise in mass tort litigation, so the question for this year’s competition felt like my lucky numbers had come up,” he said.
“Because I’ve spent a lot of time thinking and writing about what class actions are designed and not designed to do, I felt almost professionally obliged to submit an entry.”
The judging panel of former High Court justice William Gummow AC KC, Federal Court Judge Catherine Button, and ANU Emeritus Professor Peta Spender praised the high quality of the essay submissions.
“All the essays demonstrated interesting perspectives on the question and a good command of the literature and debates about class actions. However, the winning entry was sophisticated, original, and provocative and is sure to generate further debate about this controversial area,” they said.
