BA

Question 1

The barrister’s rules may make provision for

Answer 1

s 220 LPA

• BA may make rules about legal practice for barristers
• the rules provide that a barrister be prohibited from: practicing otherwise than a sole practitioner; in partnership or as an employee.

Question 2

Binding nature of barrister’s rules

Answer 2

s 227 LPA

Binding on Australian legal practitioner’s. Non compliance can result in findings of PMC or UPC

Question 3

Barrister’s ability to receive trust money

Answer 3

LPA s 246
A barrister is not to receive trust money. This section does limit the bar associations ability to make in respect of banking arrangements for money received in advance.

Question 4

Part 3.4 of LPA

Answer 4

costs disclosure and assessment.

Question 5

what must be contained within the disclosure

Answer 5

LPA s 308
disclose a client's right to:
- receive a bill
- negotiate a costs agreement
- request an itemised bill

other matters of disclosure such as estimates and avenues open in the event of a dispute, i.e. costs assessment and setting aside a costs agreement under 238

Question 6

disclosure if another law practice is to be retained

Answer 6

LPA s 309

- first law practice, must disclose all details in 308 if you retain someone else

Question 7

How costs disclosure is made

Answer 7

LPA s 310

- in writing as soon as practicable

Question 8

exceptions to disclosure

Answer 8

LPA s 311

• costs do not exceed $750
• more than 1 disclosure received from the law practice in the last 12 months.

Question 9

settlement of litigious matters

Answer 9

LPA s 312

- Must disclose costs before settlement of a litigious matter

Question 10

ongoing obligation to disclose

Answer 10

any substantial change to disclosure already made

LPA s 315

Question 11

effect of failed disclosure

Answer 11

LPA s 316

• need not pay until assessed
• may apply for costs agreement to be set aside
• failure to comply with Div may constitute UPC or PMC

Question 12

progress reports

Answer 12

LPA s 317

• must give a progress report on a reasonable request
• you can charge a client for a report as long as it’s not an update about fees
• no need to provide a sophisticated client with a report

Question 13

basis for recovery of legal costs

Answer 13

LPA s 319

• under a costs agreement
• fair and reasonable value of legal services

Question 14

Security for legal costs

Answer 14

LPA s 320

• refuse to continue acting
• take all reasonable security from a client

Question 15

costs agreements

Answer 15

LPA s 322

- must be evidenced in writing

Question 16

conditional costs agreement

Answer 16

LPA s 323

• must set out basis for successful outcome
• must be in writing and contain cooling off period

Question 17

costs agreement set aside

Answer 17

LPA s 328

- if satisfied the costs agreement is not fair and reasonable

Question 18

in what circumstances does practice direction 20 apply to a barrister

Answer 18

receive a brief from someone that is not a solicitor

Question 19

what is the purpose of the practice direction 20

Answer 19

minimise the risk of disruption to litigation

Question 20

PD - 20 what is expected of a barrister that accepts a direct access brief?

Answer 20

1 obtain detailed understanding of the matter
2 consider the evidence likely to be called
3 ascertain nature an volume of documentary evidence
4 ascertain volume and identity of potential witnesses
5 give consideration to how evidence will be collected and presented to court
6 consider likely case management steps likely to be taken
7 in consideration of the barrister’s experience, whether they can comply with bar rule 15 and 17 and take action in a timely manner
8 refuse to accept unless so satisfied

Question 21

PD - 20 what must you do if you accept a direct access brief?

Answer 21

prepare a document which,
1 sets out matters required to be disclosed under 24B of the bar rules
2 signed acknowledgement from the client
3 a certification from the barrister that they have complied with the PD and that complaints can be made to the LSC
4 file the document in court before the barrister appears

Question 22

Bale v Mills

Answer 22

FACTS
a new trial was ordered for making adverse credibility findings against a solicitor in circumstances where allegations of dishonesty had not been put to him in cross-examination. no complaint or submission was put to the judge that the rule in B v D had not been complied with. Judge has an overriding duty to ensure witnesses are treated fairly

• ANY witness should be afforded an opportunity to deal with an allegation of dishonesty.
• an inference cannot be drawn in circumstances where that inference was never raised with the witness

Question 23

Day v Perisher Blue

Answer 23

FACTS
Employee at perisher was injured at work when a skiier collided with him. Witnesses had a teleconference together and were told to be familiar with each others witness statements.
- LP cannot coach witnesses
- if a court is minded to report an LP it should give an LP seven days to respond.

Question 24

Ken Tugrul v Tarrants

Answer 24

FACTS
Kunc J has resolved the fifth interlocutory matter in a proceedings; encouraged picking up the phone.

• in dealings with each other, lawyers should act with honesty, fairness and courtesy. This should not be abandoned at the behest of clients
• attempts to gain a momentary advantage without observing proper courtesies invite correction from the court and risk destroying confidence the community has in the LP.
• filing of a motion should be the last resort and you should give a party a final written warning including the relief sought.
• three clear business days is sufficient to allow for a response

Question 25

LSC v Mullins

Answer 25

FACTS settlement conference in respect of a personal injury matter where the client's life expectancy had been reduced by virtue of a cancer diagnosis. - this was not disclosed to the insurer - misleading conduct in the course of mediation - honesty and accuracy in representation - duty of honesty and candour extends to settlement negotiations - PMC, fined $20K

Question 26

Tri-star Petroleum v Aus Pacific

Answer 26

- this case assist parties that are concerned about disclosing confidential information - this case restricted access to the legal practitioners only - this is a more onerous undertaking that a Harmon undertaking - the party was worried that without something more onerous, ppl may get market intelligence - Harmon undertaking is an implied obligation, but a more onerous obligation may be imposed in exceptional circumstances (circumstances must justify protection beyond implied undertaking)

Question 27

Virgtel v Zabusky

Answer 27

- party tried to use interlocutory applications to run up costs and then tried to stay costs, judge refused - the onus is on the appellants to show why the court should grant them a stay and the respondents should not enjoy the benefits of the orders in their favour - lawyers duty

Question 28

Philosophy - overriding obligations of parties and court

Answer 28

- just and expeditious resolution to the real issues - object is to avoid undue expense and delay - a party impliedly undertakes to proceed in an expeditious way - court may impose sanctions for non compliance

Question 29

starting proceedings

Answer 29

- a claim or application is an originating process - an application within proceedings is not an originating process - application is both a motion and a summons

Question 30

What is the reason for pleadings

Answer 30

so the other party is not taken by surprise

Question 31

Inconsistent allegations in pleadings

Answer 31

must be pleaded as alternatives

Question 32

responding to a request for further and better particulars

Answer 32

by way of correspondence and must be filed

Question 33

how long do you have to answer a counterclaim or reply to a defence

Answer 33

14 days until it needs to be filed and served

Question 34

unreasonable denials or non admissions

Answer 34

court may order additional costs be paid as a result of the unreasonable denial or non admission

Question 35

difference in disclosure between proceedings commenced by claim or application

Answer 35

disclosure applies in application proceedings if the court directs

Question 36

duty of disclosure

Answer 36

continues until the end of proceedings and relates to any document relevant to an allegation in issue

Question 37

s 68(1) - (2) of DC Act - jurisdiction

Answer 37

court has jurisdiction up to jurisdiction limit including equitable jurisdiction. Amount, value or damage sought to be recovered does not exceed $750K

Question 38

s 69 of the DC Act - power

Answer 38

all the powers and authorities of the Supreme Court (including declaratory relief and injunctions such as freezing or search)

Question 39

s 2 of the Magistrates Court Act

Answer 39

prescribed limit $150K

Question 40

s 4 of the Magistrates Court Act

Answer 40

every personal action in which the amount, value or damage sought to be recovered is not more than the prescribed limit, including an equitable claim for the recovery of a sum of money or damages

Question 41

Vaughan v Bongiorno

Answer 41

Facts (solicitor in relationship with lady. Lends her money and properties were bought. Says they were loans and wants the money back. She can't repay the money because she would have to sell the properties. Seeks a Mareva injunction) - this case concerns the level of evidence required to establish a prima facie case in application proceedings. - the judge said that the problem was that there was no evidence at all. - there is no such body of evidence as could be taken to establish even in a prima facie way the case that the plaintiff. - the pieces of evidence that have been put forward were utterly inadmissible. Just because they have been laid before the judge does not mean he was obliged to act on them.

Question 42

Tyler v Custom Credit Corp

Answer 42

the 10 factors a judge may consider when considering dismissing an action is in the interests of justice: 1. how long ago events in SoC occurred 2. how long ago the litigation was commenced 3. plaintiff's prospects 4. any disobedience of court orders 5. if the litigation has been marred by delay 6. consider who delay is attributable to 7. whether delay has been caused by P's impecuniosity or if the D is responsible for the P's impecuniosity 8. satisfactory explanation for delay 9. whether delay has resulted in prejudice to the D 10. whether delay is because of a lawyer 11. how far litigation has progressed 12. whether litigation would be concluded by striking out P's claim.

Question 43

Cape York Airlines v QBE

Answer 43

Facts (aircraft ditched in ocean. QBE thought it could be repaired. P thought it was beyond repair. D got an estimate but D did not accept the estimate. D wrote to D requesting 'authority to repair') - an election to repair must be unequivocal in time critical matters - QBE didn't need to consult with the insured, however, they wanted to proceed with their concurrence (seemingly because they didn't want any liability if there was an issue in the future)

Question 44

Shaw v Deputy Comm of Taxation

Answer 44

Facts (before enforcing a debt against directors, the DCT is required to send a director penalty notice. A defence to challenging a DPN is to show the director took all reasonable steps to ensure the Co complied with its obligation to pay the debt; an administrator was appointed or winding up had begun OR, that there were no reasonable steps they could have taken to ensure this could occur.) ISSUE - what were 'reasonable steps' - director tried to obtain finance to repay debt. it's not an exhaustive list, and because they had taken the steps to obtain finance they were therefore not required to take steps to place company into liquidation.

Question 45

federal court jurisdiction

Answer 45

s 19 original jurisdiction vested in it by parliament which includes jurisdiction to hear appeals from tribunals and authorities

Question 46

federal court's power

Answer 46

s 23 as it sees fit in accordance with matters in which it has jurisdiction

Question 47

federal court's associated jurisdiction

Answer 47

s 32 matters that are associated with a matter which is already in the court's jurisdiction, but which does not fall within the court's jurisdiction, can be conferred on the court.

Question 48

federal court's summary judgment

Answer 48

s 31A - court can give summary judgment for either A or R if there are no reasonable prospects of success. - it need not be hopeless or bound to fail for it to have no reasonable prospects of success

Question 49

federal court's overarching purpose

Answer 49

s 37M achieve just resolution according to law and as cheaply, efficiently, quickly as possible

Question 50

parties to federal court civil proceedings

Answer 50

s 37N parties must conduct a dispute consistent with overarching purpose - court may require a lawyer to give an estimate of costs and an estimate of duration

Question 51

federal court's power to give directions about practice and procedure in civil proceedings

Answer 51

s 37P - directions may require things to be done and give time limits - failure to comply with a direction may result in the proceedings being dismissed, costs orders (indemnity), amend a claim or limit a party's evidence.

Question 52

federal circuit court's jurisdiction

Answer 52

s 10 concurrent, original jurisdiction conferred by parliament by express provision (does not deal with criminal matters)

Question 53

Federal circuit court's associated jurisdiction

Answer 53

s 18 matters that are associated with a matter which is already in the court's jurisdiction, but which does not fall within the court's jurisdiction, can be conferred on the court.

Question 54

AON Risk Services v ANU

Answer 54

FACTS application to amend pleadings at trial following settlement conference - adjournment and amendment cannot be cured by costs alone. - when adjournment or amendment is sought, account must be taken of other litigants and the unfair prejudice they may suffer

Question 55

Spencer v CTH

Answer 55

FACTS fellow appealed against legislation which would not allow him to clear vegetation on his property ISSUE summary judgment that is articulated by statute 'reasonable prospects of success' s 31A of Fed Court Act - no reasonable basis for defending the plaintiffs claim - reasonable does not need to be hopeless or bound to fail

Question 56

court may call evidence

Answer 56

s 391 of UCPR by order or its own initiative, the court may call a person before it as a witness in a proceeding

Question 57

tendering a video or photograph at a hearing

Answer 57

you must give the other party an opportunity to inspect 7 days prior to a hearing a consent to admission as proof

Question 58

use of evidence which has been used in other proceedings

Answer 58

court may allow it with leave

Question 59

obtaining evidence for a future action or claim (preliminary discovery)

Answer 59

proceedings can be commenced by application to obtain evidence that may be material for establishing the right or claim.

Question 60

Service of subpoena

Answer 60

need not be served personally

Question 61

appointment of experts after a proceeding has commenced

Answer 61

parties may agree in writing to jointly appoint an expert, however, if they cannot agree, then a party may apply to the court for an expert to be appointed. (429G)

Question 62

a document used in connection with an affidavit

Answer 62

exhibit.

Question 63

an application by exchange of correspondence instead of affidavit

Answer 63

requesting particulars directions failure to comply with orders