Briefed: Commercial Law Updates
Briefed: Commercial Law Updates
Appearing on an Application
What will the seminar cover?
Appearing on an Application was event three in a four part series co-hosted by Queensland Young Lawyers (QYL) and Level Twenty Seven Chambers which aimed to provide informative and practical sessions on skills barristers and solicitors are often expected to know but not always formally taught. While sessions are typically aimed at lawyers of 3-5 years PQE, those completing their legal training and with additional PQE are also welcome. The speakers, Nicholas Andreatidis KC and Florence Chen are barristers practising in commercial law from Level Twenty Seven Chambers in Brisbane, Australia. The seminar provides a checklist of materials and rules one should consider when appearing on an application in Australia's courts.
Who should attend?
All lawyers with litigation practices, especially those 1-5 PQE.
PRESENTERS
Nicholas Andreatidis KC (Barrister, Level Twenty Seven Chambers)
Having worked as both a commercial litigation solicitor at a top tier law firm and now as a barrister (combined) for over 31 years Nicholas is able to draw on a wealth of experience in diverse areas of the law to advise and litigate for his clients. This experience combined with his friendly and collaborative working style make him a popular choice for instruction by both lawyers and clients. His practice is dominated by legally complex and high value work in the Supreme Court and commercial arbitration. He appears in all courts, arbitrations and commissions of inquiry as well as possessing extensive experience in mediations, as counsel and mediator.
Florence Chen (Barrister, Level Twenty Seven Chambers)
Florence Chen has a broad commercial practice with particular expertise in the areas of tax, building and construction, an succession. She acts in a wide spectrum of complex commercial disputes in both State and Federal jurisdictions. She has most recently been involved in proceedings involving tax litigation for the ATO, QRO and the taxpayer relating to income tax, payroll tax, superannuation and stamp duty. She has appeared in various trials and hearings involving breaches of contracts, allegations of misleading and deceptive conduct, partnerships, allegations of breaches of directors duties, unfair preference payments, property and commercial leasing disputes, family provision applications and judicial review applications.
MATERIALS
The video recording of the seminar, a checklist produced by the speakers and a transcript are published here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.
Want to join future seminars live, in person or online? Register your interest.
Website: www.level27chambers.com.au
Nicholas Andreatidis KC (NA): Hello, welcome everyone. Thank you for coming this evening for our quick little chat on making applications. I don’t know how many of you know the fabulous Florence Chen – Fabulous is actually her official first name. Florence has been at the Bar for eight years, that is a long time. Before that she was an associate to two Supreme Court Justices. Florence has a very extensive commercial practice. She does a fair bit of tax work as well. She is a go to counsel for lots of law firms on lots of hard technical things. She works very, very hard. She is very precise which makes her an excellent counsel. This is a fabulous topic for her to be chatting to you about with some minor input from me – I am just old.
Thank you all again. We would like this to be interactive to the extent possible, so we don't really want to be speaking at you. Feel free to interrupt, ask questions as we go along. It is all rather informal, despite the fact that we are both wearing jackets and I have a tie on.
GENERAL CONSIDERATIONS
Florence Chen (FC): I thought I would start by talking generally about some of the resources that I find really useful as a first port of call when thinking about bringing any application. The first one would be the QLS Proctor ‘Back to Basics’. Does anyone have this? It is $50, it is from QLS, it was written by Kylie Downes QC, as Her Honour then was, and it is pretty much an article about everything you need to know about interlocutory applications. For example, it provides the basics of summary judgment, remember what kind of affidavit material you need, what rule is it under, and what is the seminal case. It is a really good refresher, or if you have never seen an interlocutory application of a particular kind, this is a great first step and a great investment. I highly commend that book to you.
The other thing is the Uniform Civil Procedure Queensland textbook. It is a bit out of date now, it is 2016, but what it is is an abridged version of the commentaries that you might have seen in the loose leaf service. It has been updated. It is Queensland based. For example, if you are doing a summary judgment, you go to that section and it summarises almost all of the relevant cases. It will even give you, in little in brackets, “This is a summary judgment where the defendant was successful on X point”. It is super helpful in terms of not having to read ten cases, you can work out very quickly if a case is helpful for you. I highly commend that to you as well.
What else do you look at, what other materials? There are also the obvious rules, the UCPR, the Federal Court rules, they can be a bit dense. Again, having something like a loose-leaf service, a commentary that is available on LexisNexis, that helps. There are also the practice directions and those differ from every level of court, Federal as well as say the State. The State has had a recent revamp. The Supreme Court is very practical. It is the practice direction of 12/22. It sets out the day of the hearings, things like how a call over is undertaken, how do you exchange materials, when are you meant to exchange materials. It is really helpful and descriptive in that sense. There is also one for the District Court and Magistrates Court. We will highlight some of those useful points from the practice directions as we go on.
What we have provided to you on your seats is a checklist that I have knocked up, things that I think about at various points in time. Broadly, it is before the hearing day - even before you start preparing materials, what are you thinking about - followed by on the actual day of the hearing, and then after the hearing. Hopefully, this checklist provides you a good framework but also calm those nerves, ensures that you have covered everything, that you thought of everything. We will run through each of those points.
BEFORE THE HEARING
IS AN APPLICATION SUITABLE?
FC: Before the hearing day, the first thing really is to check whether an application is even suitable. An application on the applications list must take less than two hours maximum. We have seen it go badly. If you are at a call over and tell a judge “Your Honour, I assure you, it will take two hours and they say “OK. I think that is a bit of a light estimate but you go right ahead.” They will stop you at two hours. They will either send you to the end of the list, so you are waiting around the courthouse for the rest of the day, or they will send you to the civil trial list. That is the distinction. If it is an interlocutory application but it is going to take more than two hours it should have been allocated a half day or a day on the civil trial list. Do not get to the day of the hearing and then work that out.
The other thing is, you cannot have major issues of credit or substantial cross examination because that really should, again, be allocated to a civil trial list.
NA: There is no as of right, you should seek leave to cross examine. You should not assume leave will be given. You have to be careful about all those things. There are obvious costs implications for your client if you have filed an application that should have never been on the applications list. You put your client at risk. Jurisdictionally, you may have put your firm at an adverse costs decision. They sound simple but are potentially very important things.
FC: That is something as barristers we see sometimes. We get a brief that says “Can you appear on an interlocutory application tomorrow?” That is aside from looking at the law lists and seeing who is on applications…
NA: …and how many matters are listed. Never ever say thirty minutes just to slot it in when you know it is going to take two hours. It goes against your ethical obligations to give improper time estimates. Some judges take that, as they should, very seriously.
FC: In fact, this practice direction now requires that counsel identifies the time because I think they recognise that some clerk who is at the registry is asked “How long with this take?”.
PRECONDITIONS
FC: The second point is preconditions. One of the worst things to do is to turn up to court, have all your materials ready and then ask the judge to make a decision and then find out that you have not satisfied the preconditions for an interlocutory application. What type is that? That is things like a Rule 44 letter – when do you need that, when do you not need that? The common practice is to have a Rule 44 letter for most applications where they say there has been some issues with pleadings or things like that. In fact, you only really need it for particulars and in failure to comply with rules. You do not need it to strike out or summary judgments but that is a technical point. Usually, I think people try and give advanced warnings about those types of interlocutory applications. Technically, you do not need it.
Other things that are things like undertakings, as well as financial information. That includes things like injunctions or security costs. Turning up without actually being able to say “Well, did you ask the other side for an undertaking? Did you ask for financial information to confirm they can pay security for costs?” A judge will not be very happy if you have not done those things.
PREPARATION OF MATERIALS
FC: The last thing is the preparation of materials
NA: Just get it right. Even if you have done it for that type of application before, always think about starting at the beginning. Think about it carefully, no case is identical, no issue is identical. If you approach each matter with that mindset you are less likely to make the mistake of cookie cutting something from another application that is irrelevant or wrong, which is worse. Think about the rules that apply. Think about cases that apply and deal with it that way.
The applications list is busy, the judges have lots of things to deal with. You have a short window of time to persuade the court to do what it is you want to do and the result you want for your client which is what you are there for. If you turn up with sloppy, thick, irrelevant, messy material you are less likely to be persuasive.
That first step of getting material done is not just a cookie cutting exercise, it is important, it is important to get it right. It is important to have the right material in there. Think about the order you would like things said, it is a lot of what we can do. The procedures are written, the judges all work hard, they read as much as they can before the day of the application. If you have written in a style, manner and order to make things logical and persuasive, you are giving the client another advantage. There is nothing wrong with doing it that way. And it is not necessarily right to do everything strictly in chronological order, depending on whatever it is you want. For example, it might be that it is a real critical matter that you really want to highlight to the court, think about whether that can be effectively the first thing in the affidavit, rather than page eighty-five, the judge will give up reading at page six. Think about those things. You cannot always do it but turn your mind to it when you are doing the drafting
FC: Can we say, what is assumed is competence, that your affidavit material, your applications tick the boxes. What Nic is also saying is that it is an opportunity to be persuasive. You need to be thinking about, can I be more persuasive? Can I be strategic in my submissions or my affidavit material? That is the difference between a competent lawyer and one that is considered a brilliant strategist or a brilliant barrister. These are things to think about.
So, when you are thinking from first instance, you have been quickly asked, “Can you run down and do an urgent injunction? Here are all the materials, you’ve got this.” Don't think that you have to create anything from scratch, a lot of firms have internal precedences. If you do not have that, look at the cases. The cases that have previously made orders for emergency injunctions, they will cite what the remedy is, or the sections that are relevant.
NA: Our commercial list in the Supreme Court, a number of years ago, required all the material be filed electronically. So, all the application submissions are there in PDFs, that is a fantastic resource because, as a general proposition, the high end of the profession are in the commercial list, you get to read submissions that have been done by some very talented and experienced practitioners. You should take advantage of that resource, it is free.
FC: Does everyone understand that? If the matter is placed on the commercial list, you can go to the Supreme Court website and go to the eCourt > eFiles. As long as you know what the name of one of the parties is, or the court file number, you can look up the file, access it electronically and next to every single document they will have a PDF symbol so you can click into it. If you read a case about misleading and deceptive conduct and you think “Gosh, this is on point to something that I am trying to look at.” If you know that it is on the commercial list, you can go to the eCourt file, look up the submissions, you can look at the affidavit material so that you can learn how to do it from the best.
NA: I cannot remember if on the headline it tells you if it is on the commercial list but even if it does not, the commercial list judges are for example Justice Jackson, Justice Bond, Justice Dalton, Justice Bradley, you will be able to tell from the name of the judge or justice whether it is likely to be there or not. I use it, it is a fabulous resource.
FC: Sometimes, if you just search “Palmer”…He has run every single interlocutory application under the sun and you have Silks arguing it, defending it, it is amazing.
What else you need to know in terms of material? So that was more like applications, affidavit material. Know if your relief is final or interlocutory because that dictates what kind of affidavit material you can put on. If it is interlocutory you can do it on information and relief but if it is final relief on the applications list then you know that you affidavit material cannot be on information relief. It is so embarrassing to the see solicitors or barristers turn up to the applications list trying to refile an affidavit and the other side objects on the basis that is on information relief and what they are trying to seek is final relief because that means the client cannot claim that cost of that affidavit, it is embarrassing you did not know. Be careful about that.
NA: The technicalities that pertain to affidavits are important. Sometimes they go to the question whether you can or cannot make its contents admissible so be careful about that as well.
Think about the language you are using in any draft. If it is an affidavit by somebody, not you, it is their affidavit not yours. Make sure that it is their affidavit. Judges know when lawyers have written something as opposed to a layperson, be careful about that. Again, the language that you use is important because, for example, secondary evidence is a legitimate objection. If you are exhibiting a document to the affidavit, the text of the affidavit is a general proposition, it should exhibited say “On this date…” What you do not want is the first part of the application being someone taking correct objections because you approach it on the wrong basis. Even the things like information belief, you have to identify the information source in a way that is obvious. Otherwise, a proper objection can be made about it. Do not put in triple, quadruple hearsay. If a person does not know at all, even on the information belief, and you hope it will get through, that is a recipe for disaster.
FC: That is just a common affidavit. What are we thinking about how to make an affidavit brilliant? Think about how it is going to be used in court. Make sure everything is paginated, that the pagination is legible…
NA: …that pages are not missing…
FC: …that they are not upside down. Make sure it is witnessed properly and everything like that.
NA: It is surprising how often those little things do not happen properly and it becomes the entire focus of a judge’s wrath. If you are there seeking a discretion, get it right.
FC: Do not bulldog clip an affidavit, that is a judge’s pet hate.
SUBMISSIONS
FC: The next thing is, what about submissions? Often they are requested for in advance of the day of hearing, but also the District Court practice direction requires that it be provided by 4pm the day before the hearing. Do not get caught up thinking “I'll work up submissions the night before and hand them up to the judge and the other side at the day of the hearing.” The practice direction of the District Court is, I think, at least 4pm the day before and the Supreme Court is two days before where practically possible.
NA: Think about that. At an application where I was briefed recently, we filed the submissions about two days before, it might even have been three days. Our opponents waited until the day of. We turned up, the judge plainly read our submissions and it all went our way. The tactical advantage of doing it on time, in accordance with practice directions, should not be overlooked. We are not in the 1970s/80s anymore where surprise is a big thing. That is an old tactic that does not necessarily take. I am not a fan of it. If you have a point, you have a point. If you do not, you do not. Embrace your case.
Talking about embracing your case, if it is a hard point and it is a difficult point, think about acknowledging that. Not in a way that suggests we know we are going to lose, that is not very persuasive, but sometimes acknowledging a difficulty in writing immediately takes the heat out of the judge because the judge will work out pretty quickly that it is a difficult point. If you acknowledge it upfront “…but nevertheless, this is why we should win”, it is amazing how often that works, both in written form and orally. I am a big fan of doing that in writing. Again, if it is a really hard hot point and it is obviously a hard point, making that concession without giving up the point help. ‘Conceding’ is the wrong word, you are acknowledging it but you can do that and why it does not say that “I should lose.” Judges have been around a lot longer than us.
FC: To wrap up on the topic of materials, think about what it is like to be in court, make sure you have sufficient copies of everything. Sometimes it is great to have additional copies for the judge, to have working copies so you can make a note.
NA: Always have a working copy of big stuff. Doesn’t the practice direction say something about that, or is that just a habit?
FC: I am not sure if it required. What it says is that you need a working copy of the outline of submission to hand up - you always have two copies of an outline, one for the file and one for the judge. Sometimes if the materials are quite dense, it is great to provide a nice little folder for the judge, they love that tabbed or printed all in one place, have a nice index, it makes it so much easier, rather than then working off ten different documents that came out of the file that they cannot write on because they are the filed versions.
NA: Another practical tip I urge you to think about, if you know your opponents, assuming time permits, identify to them if you are the applicant, even if you are the respondent it does not really matter, but one of you take the initiative of saying “We will have a bundle of cases for the judge. These are the ten cases we are going to refer to and these are the legislation. If you've got cases you want to refer to in addition to those, tell us, or put them in in advance” so the court is given just one bundle. Imagine how irritating it would be if you have three in front of you, they have each got their own version of the cases and they are largely the same. The judge has got to sit there working out which bundle they have got to go to. It is a small thing but it is a convenient thing. Again, if you are seen to be taking the lead in that, every little bit helps.
FC: Talking about taking the lead, I was just in the commercial list review this morning. There were three parties, one of the three barristers had a consolidated list of what each party had a view on each of the different orders. So, it had the orders and ‘all parties agreed’ in green and then ‘the defendant disputes the day, otherwise agreed’. Because they had gone to take the lead, making it easier for the judge to have a look at, he was on his feet, directing things, we ended up using his draft order as a base. Strategic things like that are useful, you should think about that. Sometimes you feel like that is over preparing but sometimes it is strategic and you seem like you are competent, you are running the show – judges can see that.
SERVICE
FC: The next point is service. That is pretty much one of the rules, but just to be aware of the things like that, like affidavit material, should be sent or served three days in advance of the hearing and if you do not make that cut off then you could be up for costs on an adjournment, the other side could take issue with it. If you are two days before the interlocutory application, they may say “This is all very unfair, we need time to respond to the material, we didn't have sufficient time. We need an adjournment and it was caused by your late filing of five affidavits so we should get our costs”. You just want to know, under the rules, when particular documents need to be served, applications and affidavits in particular.
NA: You should think about whether you should have in your back pocket an affidavit of service, depending on the context. No one turns up on the other side and approves service, you cannot do it from the bar table, you need an affidavit. Have it ready, just in case. You do not need it all the time. Think about when you might need it, it is not often required but on the occasion you do and having done it…
FC: You have worked up your interlocutory application then there is an adjournment
because one of the parties did not turn up and you do not know why.
COURT FILE
FC: The next point is pretty short, it is the court file. Every time I go to court I print the updated eCourt file because it gives you an index of all the core documents. So, when you are referring to documents in an application you should be saying “Affidavit of X, court document number five”, so you will need that.
You will also note what documents have and have not been included on the court file via the index, in case someone is trying to sneak in an application but you are not aware of. It also identifies when it is next going to be listed, so if there is some sort of ex parte application that has been made by the other side you might find out about it, or the listing date might be wrong.
NA: The list of material should list the material you are going to read, that should be done by reference to the eCourt document number. Also, think about what order you are reading things. If you are there on an interlocutory application, that is document number one, the principal affidavit is number two, you refer to previous orders of the court that goes in, if you are in submissions that goes in pleadings, you read it. In effect, whatever was mentioned in your submissions, has to be read. If it is not in your submissions do not waste the court’s time reading it because the associate has to pull out everything you have said you are going to read. People do it, they read everything and they are actually only relying on one document. Again, judges get very irritated by that. If you are asking for the exercise of discretion you do not want to irritate the person you are asking to do that.
CONFERRING WITH THE OPPOSITION
FC: The next point is about conferring with the opposition. It is pretty obvious things like talking about whether you want consent orders, or at least identifying the areas of dispute. Other things you want to talk about are, is someone going to turn up or not? If another party tells you someone is not going to turn up then there will not be an adjournment of the application because a party is not there because you have an email that says they are not turning up.
NA: Do not forget when you are speaking to describe it as ‘without prejudice’ or ‘without prejudice, subject to instructions’. Do not say “Just between us…”, that does not mean anything. Characterise it correctly and make sure it is expressly said. Otherwise, you are at risk of things going very badly for you. You might be making an admission you did not mean to make. Again, that “Just between us…” conversation, other people have different views about it, but I think it is literally meaningless. It has no legal status at all, do not get sucked into it if someone tries to say it to you. You can if you want but I do not recommend it to you.
DAILY LAW LIST
FC: The last thing before the hearing is to print the daily court list. Everyone turns up because during the call over, obviously, the judges start allocating the matters and it is much easier to write on the list “matter 1, matter 2, not before X”, who is in a particular matter so if you are waiting outside the courtroom and you know that O’Sullivan KC is in a particular matter then you will know that when he walks out you are at matter number five so you can gauge when you are on. Also, to double check that your matter is in fact listed. You might not have been listed, there might have been a registry issue. Better to know the day before.
NA: Another practical tip, if you are OCD like I am which I expect you are because you all have a law degree, I like everything ready and packed the night before. I do not like doing it the morning of because you do not know what is going to happen the morning of. I have a habit and I got it from, I am pretty sure, the Honourable Walter Sofronoff, something I embraced when I came to the Bar, have a folder of stuff for the judge, a folder of my stuff, a separate folder for each opponent and it is all done, ready, so when I am at the bar table I am not doing this [manic hand gestures], I am just doing that [handover gesture], that is smoothness. That is a couple of things, one it looks like you know what you are doing, two it will help calm you down, there is so much happening. It is all very easy and a simple thing to do. I found that a very helpful tip. Have your bag packed, do not do it on the morning.
FC: Did anyone have any questions about anything that you think you should be doing or should do before the day of a hearing? Or are you happy to move on?
ON THE DAY OF THE HEARING
FC: On the day of the hearing, hopefully you prepared everything so you are already pro and schmick. But what do you do once you walk up to the courthouse, you are standing in the applications court room? This is just a checklist. I am sure you have done this quite a few times but this is to make sure that you can read the checklist before you go so you feel very comfortable about accounting for X, Y, Z and you are thinking about substantive law issues in your head and not worrying about if you have forgotten something.
CONFER WITH OPPOSITION
So, you find the representatives on the other side, hopefully exchange any materials, confer, see if there is anything else that can be agreed on, convey instructions. You need to think of a time estimate because at a call over that will be the one thing that the judge wants to know about. Find out about that or it is very good if you can say to the judge “Your Honour, we've got consent orders but we need an argument as to costs, so 10 minutes.” Then your judge might bump your matter up earlier because they think “That is just a costs argument, we can knock that out.” Whereas if you are stuck as a junior solicitor with “We will hear these five matters and then everything else by seniority” you will be there all day. In that sense, it is of great benefit to you to narrow the issues and make sure you have a short interlocutory application.
APPEARANCE SLIP & CALL OVER
FC: Other things, the court slip. As I mentioned, the Supreme Court practice direction walks you through it which is really helpful.
Things that people do badly, they try to go into the nitty gritty detail about the interlocutory application or they try to give their appearances when all the judge is looking for is the time estimate.
NA: For the respondent, 45 minutes. That is it, unless the judge asks you for more detail. This sometimes happens when they have read the material and they think your application is a bit dodgy. You will find out about that pretty quickly.
FC: Yep. As I mentioned, you have the daily law list, you just write on it the allocations and just be careful if they say “It is a short matter.” Short matters are usually ten minutes. “These five matters will be in this order, everything else by seniority.” Then you have got to eyeball that courtroom to know who is more senior than the other people, is your barrister more junior or more senior than X, Y, Z?
NA: Do not forget, if you are at a call over, the parties may agree on the outcome but if it is for discretion it is not for the parties to consent to it. You can tell the court it is not contested but it is subject to discretion so remember to say to the court that you know it is up to the judge and that it is not for the parties.
FC: That is a pet hate of the judges. “Then it is not by consent, is it?” They will have a go at you.
HEARING ETIQUETTE
FC: Also, really basic things about bar table etiquette. I am sure you have heard about it but I have put it on the checklist to remind you about it. Usually, seniority as you are looking at the bar table from right to left, sometimes crown or the prosecutors always sit on the right. If you are uncertain, you can hang back and let the other parties move forward. If there is a Silk, they tend to take the right hand of the bar table. Do not stand while other people are talking.
NA: It is very rude. If you are addressing you opponent, you should be sitting down. If an objection is being taken, you sit. That is the etiquette. The reason for that is so the judge knows who to look at. If three people are speaking, who is the judge looking at to know who to talk to? I find it almost the height of rudeness at the bar table. It is not some quaint old rule, there is actually a practical reason for it.
FC: Then you will give your appearances which are usually in seniority. You will hand up your materials and make sure when you are handing up your materials you usually hand up all your materials. Even things like draft orders, it is good to put them up upfront. So, you will hand up your submissions, bundle of authorities and draft orders so you are not making the court staff walk back and forth, “Here are my submissions. Here is a case authority.” Once you get to the end you hand up draft orders. It is neater to hand it all up in one go.
NA: Think about that. Sometimes it is not appropriate to hand up the order. It might be viewed as a bit presumptuous. Think about it, do not just do it.
The terminology is “I read”, not “May I read?” You have the right to read so you say “I read”, you identify what you are reading, if it is by way of the listed material then say so, “I have copies for your Honour. May I hand them up to you along with the bundle of authorities. It is an agreed bundle. Would you like a working copy of the pleadings? We've got a copy of that if you do.” Do all that upfront. But be careful with the terminology, it has got to be correct so the judge knows what you are doing.
FC: Once you have handed up this material, check with the judge if they have had an opportunity to read it because you sent them the day before or not. Some judges like to have the silence for reading the materials, they may even adjourn for five, ten, fifteen minutes and to do that. Some judges like you to address them, they can read the materials very quickly and do it on the fly. Always ask about that. Sometimes an elevator pitch is good. Say, “Your Honour, this is an interlocutory application for summary judgment. The reason my client is seeking this relief is because of X, Y, Z” so you set it up right from the beginning why the judge should be giving you the relief. They might say “Yes, those might be reasons why to give summary judgment.” That elevator pitch is sometimes good also for the call over because sometimes a judge will say “What is you matter about?” Then you can say “You Honour…” so you do not fumble there.
NA: A habit I have gotten in to at the bar table, this came from one of the judges and I thought it was a great idea. You can buy hard plastic folder cases which you can stick on the bar table to put your folders into. It keeps everything straight and there so you are not fumbling with things so you can see its spine which makes it user friendly.
Another thing, if you are more than average height, I take another lectern with me which I stick on the bar table. You are going to be there for a while. Maybe it is an age but my back starts to hurt and I do not like squinting so I have another lectern to put on top.
Another thing which young people, trust me you will embrace as you get older, print your notes in big font so you are not squinting. I do mine at about seventeen, even though I wear these glasses, it makes it easier.
FC: I have never had an issue with the lectern being too low but I am not game to bring my own little step. I have been told “Don’t hide behind the lectern!” Actually, interestingly, because I am short, I push the lectern to one side and angle it so that the judge can see me and so I am not blocked by the lectern.
NA: Also, at the hearing, listen to the judge, listen to the cues, answer the questions, answer it directly. Do not say “I will deal with that later” when you have no intention of dealing with that later. For a couple of reasons, the judges will know that you did that. The next time you turn up they will not believe you. As I heard the Chief Justice say recently, I won’t say it as beautifully as she said it, she said, when you are legal practitioner, having a good reputation is all that matters and not having a good reputation is all that matters. All the little things you do in court get noticed and you start building a reputation from the ground up. If you are someone who says he is going to do something and you do not, they notice it, they know it. Address the court, be polite to the court, even if the tone is something you are uncomfortable with your job is to advocate for your client. More often than not it is just a judge testing the waters, pushing against you. You should be brave and respond. As I said before, embrace your case. Hard or easy, embrace it and be prepared to argue and deal with it. Think about the hard questions you are going get and have an answer prepared. It will come out of your mouth quicker and easier if you have done that and you will sound like you know what you are doing which is not just an ego thing, it is persuasive too. You will answer it immediately and eloquently, you elevate the prospect of succeeding, particularly in harder matters.
THE DECISION
FC: What happens when you fabulously fought the case, you think you are on to a winner and the judge is going to make a decision? It could be extended, it could be ex temp, or orders as per draft hopefully.
COSTS
FC: Costs, super important. You should be ready to argue it on the spot. Know your indemnity costs. Usually this is pulled on. Someone will say “This was a misconceived application from the beginning. We want indemnity costs.” You should be aware of how to defend or how to argue for indemnity costs. Be across the Colgate Palmolive matter. It has the unusual and exceptional set of circumstances for alleging fraud when there is no basis for it. It is actually quite a high test. It is not just you lost the application and you front the costs. You have to show some misbehaviour or something, some inefficiency.
NA: The discussion about costs reminded me about something. When you are writing a letter knowing that it is likely to end up in an affidavit think about who your target audience is, that is the judge. Lots of adjectives and lots of name calling does not help, it actually tends to have the opposite effect. Be very careful with what you put in correspondence, whether it is a letter or an email, do not write aggressively. It is not called for. Do not call your opponents names, it is uncalled for. Just consider about what the judge will think on reading that correspondence. It might ultimately feed into the question of costs, which is what made me think of it.
FC: If you are writing lengthy letters that are not really relevant then the judge is less likely to give you costs. They might say “Why are you writing these lengthy, verbose aggressive emails that are not cost effective? You don’t get the costs for that.”
Other things to think about, for the Magistrates Court, you are to turn up with an affidavit fixing costs. That is in the practice direction. I almost got caught out on that. I was in the Magistrates Court, we got to the end. The magistrate asked “What are you going to ask for costs?” I said “My solicitor estimates X. I estimate this. We just want it on the indemnity basis.” They said “No, no. You are here. We are going to fix it.” I had to argue that it could be fixed, we had to provide an affidavit, despite the practice direction. I had my solicitor there who was able to say “Our fees are exactly this amount. Counsel’s fees are exactly that amount.” It took a bit of arguing, it could have gone south very quickly. Definitely check the Magistrates Court practice directions and things like that.
AFTER THE HEARING
ORDERS
FC: To round it off, what do you do after you have vindicated your client’s rights? You have the judgment that says you win. What do you do? Sealed orders do not happen as a matter of course. Often, you get the judgment and that is it. You have to write to the courts now, the list manager. It used to be SEC.orders. Now you write to the list manager and ask for a copy of the sealed orders. They then put it into the registry for you to pick up. You have to ask for it and it takes a day or two. When do you need it? It is usually for enforcement purposes, if there is money owed under the judgment and you need to start enforcement proceedings in the Magistrates Court.
NA: Even costs orders.
FC: That is right. You also want to ensure that your client complies with the orders and that if there are any undertakings that they are completed. Things like maybe you did not have the original affidavit, there is an undertaking that you would produce the original affidavit at a later date, make sure that that is actually done.
APPEALS
FC: Then also, obviously, you might think about appeals. Know the twenty-eight days you got to bring your appeal.
NA: If it is against the exercise of discretion remember how difficult that is. It is not easy. The test is not whether the Court of Appeal or High Court would have landed on a different result. That is not the test. That is very difficult. You have to demonstrate than no reasonable decision maker would have come to that conclusion. Very difficult.
FC: Even if you are angry, maybe an order for security of costs is ordered against your client, it is very difficult to appeal these types of interlocutory, discretionary decisions.
Q & A
FC: That was all we wanted to talk about. Does anyone else have any questions or a great anecdote where you saw something go spectacularly wrong?
FC: No names because this is being recorded.
Audience: What is your advice for when you make a mistake?
NA: What type of mistake? If it is a typo then that does not matter.
Audience: Maybe you say something that you contradict later or you refer to the wrong document or wrong page.
NA: My style would be to apologise, correct the record and identify what the correct thing is. If I make a submission and the judge says “What about this?” On occasion I have said “I haven’t thought about that. That is actually a really good point but…” then either respond to it or accept it and move on.
FC: I am always of the school of thought of trying to avoiding correcting the record even if you have moved on. Say for example, you read a passage of a case and say “The case stands on this proposition.” Then someone says “That’s not…” Just read the following paragraph and that will say that is not the case. You would not want to be thought of misleading the court. When appropriate, say “Your Honour, I took you to that paragraph of the decision, I would also like to bring Your Honour’s attention to the following paragraph.” Something like that.
NA: On that, with citing cases, this has actually happened where my opponent cited a case and proposition. I read the case. In fact, what was decided against me was that the court was citing the losing side’s submission and then rejected it. Read the authorities. Do not assume that what is being put against you is correct. Check to make sure that it is still law and you yourself must be very careful not to make that type of mistake. Remember what we said before about reputation. That is really bad.
Another tip, if the legislation uses a particular phrase, use that phrase, do not use different language. The High Court has reminded us over and over again not to do that. That is really important. Some of the judges will chip you for changing the language because they will think you are trying to sift one past them by using different terminology. If you are giving the effect of correspondence and not being precise about it you should say so because you do not want to leave the court with the impression that you are serving something with precision, when in fact you are saying it loosely. You should, for correctness and fairness reasons, and for reputational reasons, make it clear that is what you are doing. Again, you do not want the reputation of being a practitioner who will say anything because ultimately it will affect your client’s position because the judge will not believe you.
FC: For barristers, that may be why they have not taken Silk or did not get Silk earlier because maybe they said something in court or you are known as that person who flies too close to the sun. It is just not a good reputation. There is arguing and putting the best case forward for the client and then there is looseness.
Audience: On affidavit material, I have been told when doing exhibits two different views. When you have an email, attaching a letter and then there are other emails and a chain of emails. On one view I have been told to attach everything because you do not want to be seen to miss anything. The other view is that you just attach the letter. What is the best way of doing that?
NA: I think it depends. If it is just a covering email…If you are really worried about it, somewhere say “Where correspondence is sent with a covering email, the covering email has not been included. If required, it can be produced.” No one is going to hark up about that. As long as it truly is just that. The reason you might need to put the email in is if the time it was sent, for some reason, is important, then you should put the covering email in. Otherwise, if it really is a vanilla email there is no significance.
FC: I have seen it posted “At 4pm I caused an email to be sent which attached a letter” and then exhibit the letter. There is evidence that an email was sent and if there is nothing else relevant in the email then it does not matter.
I was in a matter where it was helpful that someone had affixed the chain of emails because it had shown something to do with judicial review and what materials had been taken into account by the decision maker because the decision maker had written in an email “I’ve taken into account all this material and made this decision.” It was not clear from the text what material had actually been taken into account but in fact that decision was affixed with the following emails so it was clear that three documents had been emailed to the decision maker and it was clearly referenced there. So sometimes it is helpful to see the whole chain of the emails but it is a judgement call.
NA: Another thing with affidavits, if you are responding to an affidavit and the contract is already in evidence just refer to that copy, assuming it is right. It is irritating having ten copies of the same document, it becomes cumbersome and difficult. Maybe this is a pet peeve of mine, if you have the deponent swearing the same multiple affidavits, have the exhibit sequential, do not reset at one again. As the advocate on your feet, you if refer to the affidavit as “Smith, exhibit 3” the judge will say “Which one? There are ten of them. They all have the same exhibit number.” Do not distract the judge with little irritating things like that.
FC: In a sense, you want to think about how this will be presented in court. What will be the most useful? Is it useless having these cumbersome emails? Then do not include them. Think about how they will present to a judge. Do not, every time you have a new email, do not include every subsequent email if it is replicated five times across five different affidavits.
NA: Just make it clear that is what you have done so the judge understands that is what you have done, and your opponents.
Audience: How hard can you go when you are against a self-represented litigant in terms of correspondence when describing your views about their prospects?
FC: Do not give legal advice.
NA: You have to be really careful about that. You do not want, depending on if you are acting for a bank for example, you do not want the judge thinking that you are going in for this person. The language you use is important. If the purpose of the letter is to say “You should give up for these reasons” then you should in a non-descriptive way, so you are not using too many adjectives, say something like “For the following reasons, our client thinks your application will fail. It is, of course, a matter for you to decide. You should go get legal advice about that. This is what we want.” Again, depending on who you act for, depends on if you can then bring this to the attention of the court in augments for costs. Again, depending on who you are acting for it might be viewed, if acting for a bank or the government, I keep giving those examples because they are two obvious big entities, you have got to be cautious when against self-represented litigants.
FC: I do a bit of work for the state who are sometimes against self-represented litigants. You should take the view that you should be fair, try not bully them. So, if you were going to say “Well, we think your matter has poor prospects”, be fair about it. Say “We recognise that you have a contract and it is a valid contract but we say that it is not enforceable for these reasons.” Whereas you may not say that to someone who is legally represented. You would not put their best case forward, you would not acknowledge their strong points, you just go hard. Whereas with a self-represented litigant you should be fair and objective. Say “These are the facts. Your arguments, as I understand it are these. For these reasons we think you have poor prospects but get your own legal advice.”
Audience: I had an experience of a self-represented litigant recently in the Magistrates Court where the self-represented litigant stood up and said “Your Honour, the lawyer ignored me outside the court room and did not try to speak to me about the matter.” Her Honour looked at me for an explanation. I said “Your Honour, I simply didn’t see him.” He insisted he tried to speak to me about resolving it and the judge looked at me as if to ask “Is this true? Why didn’t you attempt to resolve this outside?” I am trying not to look like a bullying lawyer. Unfortunately, that was not the end of the matter, it kept going. I did not know if I should have said more.
NA: Probably. I think the way to deal with that is to say “Your Honour knows it is inadmissible to give evidence from the bar table but you've asked a question so I will answer it directly. We did not have any discussion about settlement. The applicant did not approach me. I had no idea who he was, I could not have approached the applicant.” Do not be backwards about correcting something like that. Be careful though, you are not supposed to give evidence from the bar table but if an opponent, self-represented or not, is making stuff up you need to be polite in response.
FC: I think if any judge asks to respond to any question, answer it. She was clearly trying to get an explanation as to why you had not conferred it in advance. If it was that the applicant never approached you, you did not recognise him, you never spoke to him then that puts into context what the applicant says when he says “She ignored me” because he did not actually make an effort.
NA: Maybe if something like that happens again I urge you respond along the lines of something like we suggested but then add to it “I’m happy Your Honour to adjourn to have this discussion now.” That will diffuse it because the judge will say “Fair enough. Go out. Come back.”
Audience: How important is it to know the judges? To what extent, if at all, do you adapt your approach depending on which judge you are appearing before?
NA: There was one of our judges who was infamous for hating anyone who read an affidavit which was filed at 4pm the evening before the application. Anyone that knew the judge, who knew that, and you always have copies, you identify it was filed last night but I have a copy for you here. I should not laugh but this happened to one of my opponents, he and his solicitor did not know that and they did do that. The judge had some words with them about that. The judge could not find a copy of the affidavit because it was too late to get it to the judge. The poor solicitor on the other side, bent down under the bar table to find a spare copy. The judge did not see that had happened and said firmly to counsel “Where is your instructing solicitor?” All you heard was a thud and “Ow!” It was very funny. Things went very well for me that day. Things like that you should definitely know. I expect it is for reasons like that that there are practice directions now. That is the type of stuff you should be conscious of. Otherwise, the law is the law. The cases are what they are. The legislation says what it says. Be there ready to argue it.
FC: Sometimes it is helpful. It is all about being persuasive. It is all about delivering your submissions in a way that a judge likes to hear it then obviously you are going to be listened to more. I knew that one judge was quite slow and liked to think about things and did not like it when people rabbited on with their submissions. The judge preferred that you were slow. If you said “Your Honour, can I take you to paragraph five of my submissions” you would wait, the judge would look down and then look up. If you speed along you confuse them and they hate it.
NA: Know your audience, that is precisely right. Watch them. If you direct them to something let them read it.
FC: We will hang around to answer any more questions. We hope that was informative. We hope that you can hold on to that checklist for the future in case it helps you calm your nerves and know that you are well prepared and have everything ready to go for court.
Thank you so much.
NA: Thank you all.
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