CH practice questions

Question 1

A barrister has been offered a criminal law matter and the client has asked if he can do a ‘no win no fee’ cost agreement.

Answer 1

s 323(2) - the LPA does not permit conditional cost agreements for criminal matters…this cost agreement would be void s 327

Question 2

A barrister has a conditional cost agreement with an uplift fee if the matter if successful. Is this permitted?

Answer 2

s 324 LPA - a cost agreement can have an uplift fee, however it must comply with this section otherwise be exposed to civil penalty and the cost agreement is avoid s 327

Question 3

You are briefed to appear in local government matter. What do you need to disclose to the instructing solicitors so they may meet their cost disclosure obligations?

Answer 3

s 309(2) must disclose to the instructing solicitor all matters which are necessary for them to comply with their disclosure obligations.

Question 4

A random member of the public has contacted you and wants you to represent them directly in their matter before the court.

Can you accept this brief?

Answer 4

r 24A-B; r 99(a)); barrister is not obligated to but can accept a brief directly from a person who is not a solictior, however must explain matters in r 24B in writing to the client and have the client sign the document acknowledging those matters plus the matters in the practice direction 13 of 2024…must file a copy of the document in the court registry and with the barrister association

must not accept the brief if r 95(k) applies

Question 5

What is the principle in Bale v Mills?

Question 6

What is the principle in Day v Perisher Blue?

Question 7

What is the principle in Ken Tugrul v tarrants financial consultants?

Question 8

What is the principle in Lsc v Mullins?

Question 9

What is the principle in Tri-star petrol?

Question 10

Can you act for more than one client at a time?

Answer 10

r 113 - A barrister can appear for two or more parties, however must determine whether the interest of the clients may as a real possibility conflict and if they do must return the brief for all clients in the case of confidentiality that rule 108 would apply or more than one client to remove the possibility of conflict

In criminal matters, no strict rule against it however there will almost always be a irreconcilable conflict between co-accused

Question 11

Can you act against a former client?

Answer 11

r 95(a) - yes, however it depends upon whether the barrister has confidential information in which a duty of confidence is owed to former client which is material to the prospective client where that client has not given consent etc might end up being restrained from acting if that is the case and disciplinary action

Question 12

You are acting in a mediation for a work place injury matter where the client was injured at work and can’t return. The client is relying upon a report which says he can work for another 30 years. The other side have made an offer to settle on that basis of that working life. Your client has told you he has a heart condition and has 1-2 years to live and the report is wrong.

Client wants to know if he should accept the offer?

(a) What do you tell the client?
(b) Should you adviser the other side of the heart condition?
(c) Can you rely upon the older report?
(d) What do you do if the client wants you to accept the offer?
(e) The client says he will fire you if you do not accept the offer?

Answer 12

(a) r 48-49; Mullins v lsc - i would advise the client that the offer cannot be accepted because it has been made based on material facts which are not true. Acceptance of the offer would be engaging in fraudulent deception duty to not mislead opponent. If settled, the court can (1) vitiate the settlement (2) impose liability in contract, tort, or statute (3) costs implications and (4) disciplinary proceedings for the barrister. Should seek instructions to refuse offer, disclose reason why, and seek adjournment to get an new report.

(b) r 48-49; r 108; Lsc v mullins - the barrister should seek instructions to disclose the condition on the basis that the failure to do so would result in a material deception of opponent, however cannot disclose unless client gives consent otherwise this is a breach of confidentiality.

(c) r 48-49; LSC v Mullins - the barrister cannot rely on report because to do so would be to engage in fraudulent deception regarding material facts of the opponent contrary to duty to not mislead opponent. The barrister cannot be subject to disciplinary action etc.

(d) r 41 - barrister must not act as a mere mouth piece for the client and must exercise judgement called for during the case. Barrister should refuse to to accept the instructions because to do so would be engaging in fraudulent deception of opponent. Should refuse to communicate offer an return the brief under r 99(g).

(e) good.

Question 13

You are briefed to appear on a civil matter go kart accident. The solicitor wants to have a conference with all witnesses and have an agenda to the conversation.

(a) Can you participate in the conference?
(b) Can each witness discuss their evidence with each other?
(c) Witness has reviewed another persons statement can he change his statement?
(d) Do you need to tell the opponent about the witness reading the other statement?
(e) Can you test the witnesses evidence?

Answer 13

(a) r 70-71; day v perisher blue - barrister must not participate in or condone the instructing solicitor having the conference that he proposes with the lay witnesses to discus material aspects of their evidence where such conferral will impact their evidence. This will effect the integrity of the evidence by contaminating it and allegations of collusion such conference is improper and seriously undermines the process by which evidence is taken.

(b) r 70-71 - barrister should not permit the witnesses to discuss their evidence because such a conferral will contaminate the evidence they each will give this impacts the integrity of the evidence.
(c) r 68-69 - barrister should tell witness that he is to give a version that he believes to be true but must not ‘coach’ his evidence . Barrister should have witness provide a new statement or addendum statement to instructor to be disclosed to other side.

(d) seek instructions to disclose the change of version to the opponent. This is because it ensures evidence can be properly tested which serves the proper administration of justice.

Question 14

Can you act against a client that you previously acted for?

Answer 14

r 95(a) - you can however this is subject to whether you are in possession of confidential information which may be material to the prospective client’s case and whether the former client has given consent for you to use or disclose that information. Acting may result in disqualification from acting application.

Question 15

You are briefed on a family law matter. You discover that you have a mutual friend with the opponent. The mutual friend offers to meet opponent to resolve the situation.

Answer 15

r 51 - the barrister would be in effect contacting the opponent who is legally represented usurping their lawyer which is prohibited.

r 108 - the barrister is also disclosing confidential information to a person with the client’s consent.

Should refuse to allow this to happen given it is unprofessional, potentially highly unethical, and may also expose the barrister to liability where the friend may make representations which bind the barrister appearance of authority.

Question 16

You have been brief in a breach of contract matter. You discover that the instructing solicitor has sat on his hands and done nothing with the file and the statute of limitation period has passed.

Discuss

Answer 16

r 114 - barrister has reasonable grounds to believe that the client may have a claim against solicitor for negligence must raise with instructing solicitor and if the they do not agree to tell client seek to advise the client in front of the IS.

Question 17

The client has informed you that he has forged a witnesses signature which is to be relied upon for an Application.

The application is yet to be filed.

Would it change if the application had been filed.

What do you do?

Answer 17

r 12; r 26; r 39; the barrister must inform the client cannot rely upon a document which is known to be forged as this would breach barristers’ duty does not mislead the court and would also be assisting the client to commit an offence e.g. perverting the course of justice.

The barrister must withdraw from acting should the client wish to persist with forged document r 99(g))
Failure to do so would result in disciplinary action for barrister, mistrial, and potential criminal liability.

Question 18

You are brief to appear at the Townsville Magistrates Court on a bail application. The barrister is offered another brief to appear at the Townsville Magistrate Court on the same day. Can you accept the brief?

Answer 18

r 98 - barrister must not accept the second brief to appear at the magistrates court where it is reasonably likely that in appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief. Need more information about the information.

Question 19

You are briefed to appear on civil matter. You have been offered to appear on another more lucrative matter. Can you return the 1st brief to accept the 2nd brief.

Answer 19

r 102 - the barrister must not return the first brief to accept the second brief unless the condition is satisfied and r 104 is not complied with.

Question 20

You are appearing on a civil matter. You are unable to find any QLD cases on point to assist the court, however you find a District Court decision from Western Australia which is directly on point against the client’s case.

What do you do? And would your answer change if the client instructed you to not inform the court?

Answer 20

r 31; r 39; r 42(c) - the barirster should inform client of his duty to inform the court at the appropriate time during a hearing of the WA district court decision (assuming apellate court), assuming there is no binding authority in Queensland, notwitstandng it is directly on point against the client’s case this is consistent with barristers paramount duty to the court….the barrister will not have breached duty to client by informing the court of the case contrary to client’s instructions.

Question 21

You are aware of an authority from the NSWCA which is directly on point against the clients case. Can you simply footnote the decision to bring it to the court’s attention?

Answer 21

r 26; r 31 - No duty to candor and frankness with the court would require the case to be clearly brought to the attention of the court footing noting might not discharge duty to the court (Copeland)

Question 22

You are appearing on a civil matter. You are unable to find any QLD cases on point to assist the court, however you find a District Court decision from Victoria which suggest your client is in the wrong, however the law is different.

Answer 22

r 31 - no duty to the court as it is not on point given the legislation is different it may not actually assist the court in any event.

Question 23

You are appearing on a criminal matter. The decision has been reserved, however the QCA has publish a new decision which resolves the main issue at trial it is directly against your client and is on point.

What do you do?

Answer 23

r 31; r 33; r 42 - the barrister must inform the court in the way permitted by r 33 of the decision which would be within r 31. The barrister will not have breached duty to the client by informing of a r 31 matter should the client refuse to give those instructions. ..however should the client refuse to give instructions barrister would be unlikely able to withdraw given r 101.

Question 24

You are brief to settle Defence. The client is going to deny the allegations. What must the barrister be satisfied of before making such a denial.

Answer 24

r 63 - the barrister must be satisfied the material provides a proper basis for the allegation to be made. The failure to do so may constitute an abuse of process, disciplinary action for the barrister and inherent jurisdiction to award costs against the barrister.

Question 25

You are acting for a plaintiff in a family law property settlement. The respondent is represented by a top tier law firm. You have a mutual friend who knows the defendant personally and has offered to speak with the defendant to help the meditation of matters. Should you take the friend up on the offer?

Answer 25

r 37; r 52; 108; the barrister must not discuss the matter with the mutual friend given that would breach duty of confidentially. The barrister would advise the client against engaging friend to assist with discussing the matter given the friend is not an accredited mediator, not governed by any legal or ethical code, and would also breach the no contract rule given the barrister would be contacting the opponent directly without going through the lawyer. The barrister would be exposed to disciplinary proceedings, and tortious liability of negligence should this occur

Question 26

The client has admitted to forging a document in the proceedings. The decision remains pending what do you do?

Answer 26

r 58 - the barrister must seek instructions to inform the court of the falsified document as soon as possible, however if the client refuses to provide those instructions the barrister not inform the court (r 108), however is not permitted to take any further part in the matter.

Question 27

You are appearing on a ex parte application for interlocutory relief. Your client has instructed you to not inform the court of a factual matter covered by LPP which is against your application. Discuss.

Answer 27

r 41; r 29-30; the barrister must not act as mouth piece for client the barrister must inform the client there is a special duty of the candor in ex parte applications to disclose any factual or legal which may limit granting of relief this avoids an abuse of process which if founded may result in the order being vitiated by the courts, inherent jurisdiction costs implications, restrained from acting, and disciplinary proceedings, barrister must seek instructions to disclose for the wavier of LPP if the client refuses must not appear on the application

Question 28

The client asks if you can annex an without prejudice letter to an affidavit to the court?

Answer 28

The barrister must not disclose without prejudice correspondence unless it is on the questions of costs this is because it is confidential communication sent between the parties aimed to resolve the matter. Disclosure the letter is not admissible and it can be result in disciplinary action.

Question 29

You are appearing at a trial. Your client is under cross examination and the matter gets adjourned. Can you call your client and have a chat regarding the cross examination so far?

Answer 29

r 72 - the barrister must not confer with client whilst the client remains under cross examination unless exceptions in r 72 are present. This rule protects the integrity of the evidence by avoiding allegations of coaching, collusion, and fabrication. Can result in disciplinary action, restrained from acting, and mistrial.

Question 30

You are acting for three co-accused in a criminal matter what steps do you need to take?

Answer 30

r 113(b) - Barrister must ensure the interest of the clients do not conflict and if so must return the brief until the the conflict is removed etc

Question 31

You are brief regularly by a firm. Do you need to disclose your fees to the firm?

Answer 31

s 311(b); s 309; - the barrister may be exempt from disclosing cost information under s 309 where the conditions in s 311(b) are satisfied. It is my view, a prudent barrister would always disclose the cost material for every matter.

Question 32

Can a barrister rely upon a conditional cost agreement?

Answer 32

s 322 (1)(b) s 323 - A barrister can disclose a conditional cost agreement to the client, however it cannot be a for a criminal or family law matter.

Question 33

Can a barrister impose a 50% uplift within a conditional cost agreement should the matter be successful?

Answer 33

s 324(4);s 327 - no - an uplift fee for a litigious matter must not exceed 25% of the estimated legal fees to do so would mean the cost agreement is void and the uplift is not recoverable this also exposes the barrister to civil penalty

Question 34

The barrister wishes to take 1% of the final settlement figure and reduce is fees by $1,000.

Answer 34

s 325(1); s 327(5); s 319; the barrister must not enter into a cost agreement in which fees are calculated by reference to a settlement figure (contingency fee). To do so, exposes barrister to civil penalty, potential disciplinary proceedings, and the cost agreement will be void, the contingency fee will not be recoverable, and costs only recoverable as per s 319(b) or (c).

Question 35

The barrister has been approached by his client to represent him in a domestic violence matter. The barrister previously represented the client in family court proceedings. The client has asked the barrister whether they can use the disclosure from the family court proceeding in the DV proceedings?

Answer 35

r 12; Harman; hearn v street; r 39; the barrister must inform client the compelled disclosure in the family law proceedings is subject to an implied harman undertaking which was given to the court to only use that documents for the purpose which it was disclosed and can't be used in DV proceedings even though parties are the same. to breach undertaking would be contempt of court, may result in striking out proceedings commenced on that material, and disciplinary proceedings for barrister. The barrister must explain to use material would need to apply to family court to be released from the undertaking.

Question 36

LSC v Mullins involves a barrister's duty to opponent during meditations to not engage fraudulent deception regarding material facts. (a) what advise should the barrister give the client regarding duty of disclosure during meditations?

Answer 36

r 25-26; r 48-49 - The client has a duty to disclose any factual matter which, the failure to disclose, would result in the opponent being mislead or deceive regarding a material aspect of the negotiation. The failure to do so may result in (1) court vitiating any settlement where this has occurred (2) liability in contract, tort of deceit, and misleading conduct in statute (3) disciplinary proceedings against barrister.

Question 37

LSC v Mullins involves a barrister's duty to opponent during meditations to not engage fraudulent deception regarding material facts. (b) What is a barrister's duty to the the opponent in a meditation?

Answer 37

r 25-26; r 48-49 - a barrister has a duty to not mislead or deceive, and not make false statements to opponent regarding compromise of the matter. The barrister who does so can be subject to (1) disciplinary proceedings and (2) liability in contract, tort of deceit, and statute misleading and deceptive conduct

Question 38

LSC v Mullins involves a barrister's duty to opponent during meditations to not engage fraudulent deception regarding material facts. (c) what should a barrister do if the client refuses to disclose a material fact which the failure to disclose would result in the opponent being mislead?

Answer 38

r 41; r 48-49; r 108 LSC v Mullins - the barrister must not disclose the confidential information without the clients consent, however the barrister must not engage in intentional deception of the opponent. The barrister must return the brief should the client refuse to accept the barrister advise regarding conduct of the meditation r 99(g).

Question 39

You are appearing on a civil hearing and you suspect the opponent has made a mistake by conceding some aspect of the case this is to your client's benefit what do you do?

Answer 39

r 28 - the barrister has a duty to alert the opponent regarding the belief the concession was made by mistake and where necessary inform the court. This is because the barrister has a duty to the court to assist with the proper administration of justice, and to not take advantage of obvious error of opponent duty of candor and honesty.

Question 40

A barrister has previously acted for a client in a negligence claim against the insure. The insure in another matter has asked the barrister to act against the client. Can this occur?

Answer 40

r 95(a) - the barrister must refuse to accept the brief from the ensure to act against the former where the barrister has confidential information to the client which may be material to the prospective client's case where the former client has not given consent to use or disclose that information. Should the barrister accept the brief the barrister may be subject to disciplinary proceedings, and may be disqualified by the court from acting upon application by the client given the apprehension of misuse of confidential information.

Question 41

A barrister has two briefs both hearings on different days. The court has now relisted the matters which are both on the same day before different courts. The barrister despite requesting this not occur the court has done it anyway. What must the barrister do?

Answer 41

r 58; r 98; r 105; the barrister must inform the client and instructing solicitor there is a real possibility that the barrister cannot appear on the second in time brief given the court changes. The barrister must seek instructions to adjourn the second in time hearing and notify opponent and court as per r 58, however should that application be unsuccessful the barrister must return the second in time brief as per r 98 or r 105.

Question 42

A barrister has a wedding for his brother on 1 July 2026. The barrister has a hearing on the same day. The barrister cannot attend both. Discuss.

Answer 42

r 103-4 - the barrister must not return the brief to attend a social occasion unless the client or IS has expressly permitted the barrister to do so and must return with sufficient time to allow another barrister to appear.

Question 43

Can a barrister comment to the media regarding the quality of the evidence being relied upon for a current proceeding in which the barrister is appearing.

Answer 43

r 75(c) - the barrister must publish to the media personal opinions of the merits of a current proceeding other in the course of the genuine academic debate. Should the barrister do so this may result in disciplinary proceedings, restrained from acting by the court (see R v MG), and potential for mistrial by tainting jury pool.

Question 44

What is a killer point?

Answer 44

A killer point is an argument which is fatal to the proceeding once raised. A barrister has a duty to raise this with the court at the commencement of the proceeding consistent with duty to not waste courts time and resources because should it be raised it would bring the proceedings to an end.

Question 45

A barrister is about to cross examine a witness regarding his observations about an offence. The client want's to know whether we can cross examine the witness about his chosen footy team which clearly demonstrates the witness is a a fuck wit. Client says I pay you to do what I say !

Answer 45

r 66; r 41-42 - the barrister must not act as mere mouth piece for client must use own independent judgement must explain to client that barrister can only cross examine a witness regarding matters of credit where acceptance of the answer is likely to diminish the credit of the witness which this is not otherwise this may be considered an abuse of process, and may lead to disciplinary proceedings and inherent jurisdiction to award personal costs against barrister.

Question 46

Barrister B has been approached by a solicitor to represent client Y in a family law dispute. Client Y's ex partner client Z was previously represented by barrister B in a different, unrelated matter. Client Z prior matter was involved in a contentious business matter that revealed financial information about client Z (a) what is the relevant rule that governs conflicts of interest?

Answer 46

r 95(a); r 113

Question 47

Barrister B has been approached by a solicitor to represent client Y in a family law dispute. Client Y's ex partner client Z was previously represented by barrister B in a different, unrelated matter. Client Z prior matter was involved in a contentious business matter that revealed financial information about client Z (b) What is the general principle behind rules regarding confidentiality?

Answer 47

The rules regarding duty of confidentiality seek to ensure that a client is able to have full and frank discussions with lawyers knowing that such information will not be used or disclosed without consent, and this also supports public confidence in the administration of justice.

Question 48

Barrister B has been approached by a solicitor to represent client Y in a family law dispute. Client Y's ex partner client Z was previously represented by barrister B in a different, unrelated matter. Client Z prior matter was involved in a contentious business matter that revealed financial information about client Z (b) What steps should the barrister take to manage the conflict?

Answer 48

r 95(a); r 108 - the barrister has information which is clearly material the prospective client's case namely financial information which the former client has not given consent to use the barrister must refuse the brief or obtain expressed written consent for the use of that information r 108. The barrister risks disqualification from the representation of the matter, and potential disciplinary action.

Question 49

Barrister A has been approached directly by client W to represent them in a civil litigation matter involving a dispute over the sale of a business. Client W has not engaged a solicitor B and the Barrister D is considering accepting the brief under the direct access briefing arrangements. The barrister practices in civil litigation. (a) Is the barrister required to accept the brief?

Answer 49

r 24A; r 99(a) - the barrister is not obligated to accept the brief under the cab rank rule

Question 50

Barrister A has been approached directly by client W to represent them ina civil litigation matter involving a dispute over the sale of a business. Client W has not engaged a solicitor B and the Barrister D is considering accepting the brief under the direct access briefing arrangements. The barrister practices in civil litigation. (b) What is the relevant practice direction for direct access briefs?

Answer 50

PD 13 of 2024 - this requries the barrister to explain in writing the matters listed in r 24B, have the client sign that document, the complaint process, and have that document filed with the relevant court registry and bar association.

Question 51

Barrister A has been approached directly by client W to represent them ina civil litigation matter involving a dispute over the sale of a business. Client W has not engaged a solicitor B and the Barrister D is considering accepting the brief under the direct access briefing arrangements. The barrister practices in civil litigation. (b) When should a barrister refuse a direct access brief?

Answer 51

r 99(k) where the barrister has reasonable grounds to believe the failure to obtain an instructing solicitor would seriously prejudice the barrister's ability to advance and protect the client's interests.

Question 52

What are the pros and cons of direct access briefing?

Answer 52

pro - cost effective for the punter, greater control over the conduct of the matter cons - time intensive as the barrister will need to take instructions, file notes, direct contact with client, receiving fees in advance, unable to give as much time as a solicitor,