Direct Briefing:
A barrister in Victoria is bound by the Victorian Bar Practice Rules to accept an engagement on behalf of a client usually only through the client’s lawyer (Legal Profession Uniform Law Application Act 2014).
In some circumstances a barrister may accept instructions from a client or approved professional organisation directly (without also needing to engage an instructing solicitor), in accordance with the Direct Access Rules in Part VI of the Practice Rules.
A barrister shall not commence any work on a direct access matter until the barrister and the client have executed the standard terms of a costs agreement and costs disclosure.
General Overview:
Things to do before preparing the brief:
- Inspect the Council file (if Planning and Environment);
- Inspect the Tribunal file (all Civil and Administrative Matters).
When briefing Counsel the most important document is the memorandum setting out the clients case:
- What counsel is briefed to do, who our client is and who we are taking instructions from, is a client a commercial or government client within the meaning of Consumer Law, facts with reference to any contracts, specifications, plans, relevant laws and correspondence;
In the brief itself include the following documents:
- An index with reference to each tab used in the brief and what it contains.
- Any relevant correspondence between the parties; e.g. variations, time extension, any letters between the parties and history of negotiations;
- Critical documents such as Orders of the Tribunal, Permits, Notices of Decision and officer’s reports;
- If the matter is on foot then any correspondence from the prevailing court or tribunal;
- Planning Scheme/Regulatory documents; everything from the provisions of the relevant DDO to reference documents and State Environment Protection Policies;
- Expert reports; whether accompanying the permit application or exchanged in preparation for the hearing;
- Plans. Solicitors must take care to clearly identify what plans have been prepared and to whom they have been distributed also ensure the plans provided are the latest plans;
- Cases; relevant authorities should be included when the circumstances allow and/or when the outcome may turn on legal interpretation of a particular provision;
- Maps; these should be provided in colour. Quite often zoning and overlay maps and plans can only be properly understood if they are produced in colour; and
- Photos/photomontages;
- As a general rule include the documents in chronological order under each tab with most recent documents on top;
- Do not provide original documents to counsel because when you do get them back, they are likely to be marked.
Confirm receipt of the brief; if your barrister doesn’t confirm receipt of the brief, follow up with a phone call in two or three days to make sure the brief has arrived.
As a general rule get the person who is going to run the case to do the directions hearing, whether that is yourself, your partner or Counsel. There are a number of reasons for this:
- Sizing up one’s opposition, Counsel’s availability; crucial dates, panel hearings;
- Perhaps most importantly, briefing counsel early will get them on top of the facts and more able to participate in strategic decisions about the conduct of the case.
- The Tribunal is an extremely busy and active organisation. It has wide ranging jurisdictions, involving high volume jurisdictions such as residential tenancies, guardianship and civil claims, and complex and legally challenging jurisdictions such as planning, retail tenancies, real property, taxation, review and regulation. Having the appropriate Counsel for your jurisdiction is pivotal for running your matter.
What to do at Direction Hearings if you are to appear yourself without Counsel:
- Read the file to prepare. As mentioned, there are often two files to be read; the council file and the Tribunal file.
- Call your opponent before the hearing.
- In most instances you should be able to prepare consent orders, meaning that you can avoid wasting the Tribunal’s time and saving your client’s money.
- More importantly, however, having matters prepared by consent will give you the capacity to seek advice and thereby reducing the risk of making an avoidable error.
- Calling your opponent will usually flush out any preliminary issues that you are perhaps not aware of.
- Make a point of asking Are there any other matters that you intend to raise or that we need to discuss? This will give you a day or two’s notice about difficult issues and should prevent you from being ambushed at the directions hearing.
- Look for opportunities to strengthen your case.
- Directions hearings are not only about dealing with matters raised by others.
- They also present an opportunity to strike a strategic advantage, by: seeking the production of documents; seeking further and better particulars of your opponent’s grounds; having a matter struck out; joining related matters together and so on.
- Briefing late may lose opportunity.
- If a matter is raised that takes you by surprise don’t hesitate to object on the basis that you had not been given notice.
- If that doesn’t appear possible (or doesn’t appear to be working), ask to have the matter stood down while you seek instructions.
- It will be rare that such a request will be denied.
- At that point, call the barrister who is or is likely to be briefed, your firm, or speak to one of the barristers in the room who is not associated with your matter.
- Most of us will be only too glad to assist.
- Seek Liberty to apply and have the question of costs reserved.
- Arguably this can be implied in the absence of such an order, asking these matters places people on notice that you may want to revisit the orders at a later date and/or recover costs.
- Even if you choose to do the directions hearings yourself, get counsel involved early and consult about the matters to be considered at the directions hearing.
What Should Solicitors or Clients do during the Final Hearing:
- Fill out the appearance sheet, know the witness’ availability, manage the client;
- Be aware of who is in the room.
- If you don’t recognise someone, go and introduce yourself and politely find out who that person is.
- When it comes to cross examination, for instance, it will be important to know whether that person was present during the cross examination of a related witness;
- Pass notes to counsel, ensure written clearly;
- Keep a running list of the exhibits and evidence;
- Be ready to answer your Counsel’s question “Is there anything else” at the end of examination in chief, cross examination and submissions.
Daniel Epstein of Counsel
