Briefed: Commercial Law Updates
Briefed: Commercial Law Updates
Preparing for Trial
What will the seminar cover?
This was the first CPD in a series of four co-hosted by Level Twenty Seven Chambers and Queensland Young Lawyers covering essential lawyer knowledge and skills.
Both having practised as solicitors at international law firms prior to joining the bar, Michael Trim (Level Twenty Seven Chambers) and Tim Stork (Lucinda Chambers) shared practical tips on preparing for trials in the commercial and planning & environment courts.
Who should watch?
The session was targeted at those up to PQE 5 years but more experienced lawyers will find it a helpful a refresh.
PRESENTERS
Michael Trim (Barrister, Level Twenty Seven Chambers)
Michael is a commercial law barrister. His blend of legal and strategic acumen stems from his experience as a solicitor, solicitor advocate and barrister on construction, infrastructure, insurance and property disputes for over twenty years. Prior to joining the Queensland Bar in 2009, Michael worked at top firms in Adelaide, Brisbane and London, including Clyde & Co and Clifford Chance in London. Michael represents national and international law firms, as well as major construction corporations, in all QLD’s courts and often in international arbitrations.
Tim Stork (Barrister, Lucinda Chambers)
With over 17 years’ experience in planning, environment, compulsory acquisition and energy law, first as Senior Associate at what is now a global firm and more recently as Senior Legal Counsel and Acting General Counsel at Energy Queensland, Tim now practices as a client-focused barrister adept in providing user friendly and strategic advice to reach commercial and practical solutions. Tim appears in QLD’s Planning & Environment Court and Land Court for residential, retail and commercial developers, landowners, government agencies, and private clients.
MATERIALS
The original video recording, PowerPoint and transcript are available 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
00:15
Beau Foley (QYL): Good evening, everyone. Welcome to our CPD event for this evening. My name is Beau Foley, I am the President of Queensland Young Lawyers. I would like to begin by acknowledging the traditional custodians, the people and the land on which we gather here this evening and pay my respects to their elders past and present and extend that respect to any Aboriginal or Torres Strait Islander people here this evening.
Thank you for coming to ‘Preparing for Trial’ tonight. We are really excited to partner with Level Twenty Seven Chambers for this event. They are a great supporter of young lawyers and put on these events solely to benefit young lawyers.
We are really lucky to have two fantastic speakers here this evening. Michael Trim and Tim Stork. By way of a brief introduction, Michael is a commercial barrister practicing here at Level Twenty Chambers. His blend of legal and strategic acumen stems from his experience as a solicitor, solicitor-advocate and barrister on construction, infrastructure, insurance and property disputes for well over twenty years. Prior to joining the Queensland bar in 2009, Michael worked at top tier firms in Adelaide, Brisbane and London, including Clyde & Co and Clifford Chance in London. Michael represents national and international law firms, as well as major construction corporations in all of Queensland’s courts and international arbitrations.
With over seventeen years’ experience in planning & environment, compulsory acquisition and energy law, first as a senior associate at what is now a global law firm, Tim now practices at Lucinda Chambers. He is a client focused barrister, adept in providing user friendly and strategic advice to reach commercial and practical solutions. Tim appears in Queensland’s Planning and Environment Court and the Land Court for residential, retail and commercial developers, landowners, government agencies and private clients.
If we could just give a warm welcome to Michael and Tim. I will hand over now to our presenters. Please stick around after the presentation. We will firstly have a Q & A session, then some casual drinks at the back of the room.
02:57
Michael Trim (MT): Thank you. Thank you very much to all of you who are here and also to those people online. We are very grateful for the opportunity to talk to you, especially as someone who sadly can no longer describe myself as a Queensland young lawyer and with more grey hair than I care to count these days. It is exciting and reinvigorating to be able to work with a variety of different people, generations, background and otherwise. We hope that you get some value from our talk tonight.
[Slide 2] We expect to talk to you for a bit under an hour, we are going try and cut it a little short so there is some time for questions and some interaction, Tim can answer all those. We do not intend this as an academic lecture. It is very important contextually, what we are intending to do tonight is to try to give the benefit of our combined and separate practical experience. Of course, always happy to talk to you about any particular issues that arise but we are going to do something of a whistlestop tour through various stages of preparing for trial which hopefully will be useful to you.
When preparing for trial, I will come to what we mean by trial, there are of course generalities. Different jurisdictions have different rules, different laws, and all of those are important. Please forgive us if we tend to focus on those areas where we tend to appear. For example, my appearances tend to be mostly in the Supreme Court Queensland or the Federal Court of Australia. Jurisdictionally there can be very big differences. An example would be an arbitration. I should say too that if there are any questions from anyone online, the lovely Tamara who has in fact done all the hard work organising tonight, for which we are very grateful, has access to those and will pass those on at the end. So, if you are online, please do feel free to send the questions through. I also have a tendency to talk far too fast, so please put your hand up or yell at me if I tend to do that.
[Slide 3] Preparing for trial, we are going to cover four aspects of those. Tim, in a moment, is going to talk about preparing for trial before proceedings are filed. I will then talk about interlocutory steps. Tim will talk about immediately before the trial and then I intend to talk about during trial because there is something of an overlap. We tried to divide it up into those things that you do to prepare for a trial.
[Slide 4] That then leads us, in good barrister fashion, to question, what is a trial? I will try not to be too philosophical about those things, but to set some context for what we are actually talking about tonight, by that we mean, a contested hearing in an adversarial setting. That can come in a variety of different forms, particularly as somebody who participates in private dispute resolution, whether it be expert determination, domestic arbitration, international arbitration or otherwise, the form in which a hearing or a dispute is resolved can take on a number of different looks with a number of different things, can occur in a number of different places. We are talking about a trial as a hearing of a contested adversarial dispute. It is usually where there are adversarial parties who are intending to persuade somebody to resolve the dispute in their favour. That is what we mean by a trial.
Obviously, we are focused on things like a trial in the Supreme Court of Queensland or the District Court of Queensland. By virtue of our background, we are focused on civil trials. So, to anyone who practices in the criminal sphere, please forgive us, because that is not in our wheelhouse. We tend to be focused really on civil matters. So, I will hand over to Tim.
PREPARING FOR TRIAL
06:19
Tim Stork (TS): [Slide 5] I said to a couple of people earlier tonight, this is the first time since I have come to the bar - I think I am probably young in the bar sense - I have been at the bar for three years, but it is the first time since coming to the bar I have actually had or been able to present to actual people in a room. It has been very strange just presenting to a camera. It is nice to actually have people in the room, so thank you for coming and for those online thank you for being there too.
As Michael said, my perspective, or as you might have gleaned from my introduction, I predominantly practice in the Planning and Environment Court and to a degree in the Land Court too, that is a specific jurisdiction, the Planning and Environment Court within the District Court with District Court judges who have a specific commission to do that type of work. Traditionally, they come from the planning & environment practice, that is what they have done for most of their careers. That is the same generally throughout the state, with some exceptions. So, my perspective is from there, they have slightly different rules in there but I think there are some fundamental aspects about preparing for a trial that will apply whichever court you are in, whether it is the Planning and Environment Court, or whether it is District, or Supreme civil proceedings, or Federal Court civil proceedings or other types of proceedings there will be some fundamentals that are the same.
[Slide 6] So, I am going to start this by saying, I think it is very important, this is a bit of a basic thing to say, but I have been surprised at the time when people do not do these sorts of things, use a list for everything. Do whatever works for you because there really is no substitute for being organised. The alternative is forgetting something and having somebody look at you, whether it is your client, whether it is a senior counsel, junior counsel, or some a more senior solicitor and say “Where is X, Y, and Z?” and you look at them blankly and then realise that you were supposed to do it and you have not. I think this applies throughout a proceeding and it is especially useful when times are stressful because you have got something to fall back on. I would say check those lists with senior solicitors you are working with, with counsel and with the client, sometimes experts as well, “Am I supposed to be doing this? Are you supposed to be doing that? This is when I'm doing that” as well because that will assist you throughout the whole process with being organised.
Before Proceedings are Filed
[Slide 7] Michael, and I thought we would divide this up into the four stages of that roadmap Michael went through earlier. To my mind, there is a stage that initially I did not think about but then thought, really there is a stage that is before you have even filed, before you have started any sort of proceedings that is part of preparing for a trial. Sometimes it is very rushed but ideally there is time taken at that stage.
[Slide 8] I look at the preceding aspects in two ways. The first is at a macro level, what is my narrative? What is my elevator pitch for this for this case? What am I going to effectively try and sell to a judge and to a degree it is something to the other side too because you want them to believe your case has some strength to it.
I will read you what my narrative was, for my first case at the bar. It involved a MacDonalds fast food outlet, a shopping centre. This really was the basis, the narrative sense for our case and it formed the first two paragraphs of our submissions, effectively. It was the narrative early on and it remained more or less the same into the submissions. It was that “The appellant proposes a food and drink outlet of precisely the location the community would expect it to be, on the corner of a shopping centre, on land designated by the council as a district centre, a district centre is where you expect a shopping centre, it is where you expect a MacDonalds.” That informed how we prepared for trial. These things change, your narrative does change sometimes. Likewise, this next aspect, which is the way you should look at things in detail, might change as well.
The second way to look before you file a trial, or the matter is, what do you need to prove and how are you going to do it? Who are the witnesses? Are they lay witnesses? Are they expert witnesses? Are they available? Or are they going to be difficult? Would you be able to use them and rely on them in court? Because if you have got really unreliable witnesses it is quite a difficult job to win a trial based on those witnesses. What are the documents that you will need to rely on to prove your case? Who has them? Likewise, you might want to look at the other side, you should look at the other side of things, which is what are the other side going to have to prove? What are they going to say? You might also look at their narrative as well. In doing that, you might also look at how you are going to plug gaps in your case as well. It is also a good opportunity, once you have done that, to tell the client what the gaps and weaknesses are in your case or the other side's case.
12:13
The next step will be yours Michael.
Interlocutory Steps
MT: [Slide 9] Thanks, Tim.
12:23
Can I endorse what Tim has said in this sense, I often think preparing for trial involves thinking of it in this way. If I personally had to stand on my feet in a court in front of fifty people and I was asked “Tell me what this case is about. You have two minutes.” Can you answer that question? Now that is expressed in varying degrees of sophistication depending on the textbook you read and listen to case theory, your narrative, your pitch, but it is an important question to be able to answer. If you stop and think about why and what a trial involves you will start to think about why this is important. Ultimately, a trial is about, in an adversarial system, persuading somebody that you and your client, or clients, are right. Part of persuasion is explanation. Explanation or persuasion can sometimes seem simplistic, can sometimes seem like they cover over the details but done well ought to involve a sense of pyramidal thinking, I think. Can I answer that two minute question? If I was standing up in the Supreme Court of Queensland, can I explain to the judge what it is my client wants and why? If you can do that, a lot of things will flow from that.
[Slide 10] Now I am talking to you about interlocutory steps. What do I mean by interlocutory steps? Please forgive me if some of this for some of you is elementary but I think it is important to set the scene, it is important to define what we are talking about. Interlocutory steps are those things that you do after you file proceedings or commenced proceedings, as Tim said. You started a dispute. You have talked to your client, you have worked out what the case is and you have put some documents, something before somebody that says “This is what my client or my clients want and this is why” but stop, the story does not end there. If we think about a spectrum of activities between the time when a dispute is started and the time when it is decided in a trial, we can think about those things we need to do. Just because you filed proceedings, just because you have a Statement of Claim that sets out what your case is does not mean you should stop there. In fact, quite to the contrary.
Now, again, jurisdiction specific so the Federal Court has often adopted some novel and different procedures on case practice management note number one, it is a very interesting document, you should read it. It embraces things like statements of case, the definition of dispute in different ways. The Supreme Court has a variety of very helpful lists, very helpful practice directions, this is a different way as these things can be done. In the Supreme Court of Queensland, traditionally it would be done by pleadings, Uniform Civil Procedure Rules tell us that you set out a statement of claim that sets out your case, but please be conscious that it depends on where you are, depends on who we are talking to, that is the starting point for judging what you would do, by way of interlocutory steps.
In private dispute resolution there might be limits on that the arbitrator, the expert determiner, whoever it is, might not have the power to do some things. Those things will need to be considered as part of your preparation but for all of those things and caveats, barristers love caveats, you will know that, there are broad themes that apply.
What is our case?
[Slide 11] I have divided them up in this way. You will forgive me for what seems to be the simplicity of these things. You cannot go past that question, in my opinion, what is our case? If you are the plaintiff or the applicant, what is it we want and why? In the heat of the moment, for various reasons, because there are corporate interests, because there are personal interests, because there are emotional interests, because things have happened, because there is history, sometimes it is hard to actually think, why are we doing this? That is the point of a trial. What is the case that we are going to want the decision maker to consider? What does the other side say in response? One of the difficult things as an advocate that I learned through the blessing of working with those who are very talented and very experienced just thinking about this from the other side's perspective, having the objectivity to think “Well, I've said what I want to say. I’ve put my client's case but what would the other side say if I've read what I've read. How do I judge what the other side's case is?” That shapes how you prepare for trial and how will we prove our case? So, questions of evidence of admissibility that I will come to. How will we prove it? Again, it is jurisdiction specific. How are we going to disprove the other side's case? Those four things, in my opinion, shape how you ought to think about preparing interlocutory steps during a proceeding or during a dispute of some sort.
[Slide 12] Starting with, what is our case? The very element. We have a pleading, some sort of document that sets out what the case is. But at all stages after the disputes been started, you might receive additional information, you might see documents, you might find somebody new to talk to because ultimately things are proven by people or documents typically. At some stage, things can change – trials, proceedings can be very dynamic. It is always important to remember preparing for a trial, have I put the other side on notice of what our case is in some fashion? Now whether that means you go back and look at the claims, that you need to go back and look at the Statement of Claim, does it need amendment? Have we reviewed all the documents? - one of my old chestnuts because I am an old man. Have we talked to the human beings? People who are there? Now, admittedly, some of them might say, if you had asked me what I had for lunch two weeks ago “I don't know” but it is important to at least ask the question. You would be amazed if you take the time to sit with people, if you are courteous to them, if you are interested in them, if you do them the service that they deserve, ask “what is it you remember?” and work through those things, work through documents. Do you have all the documents for each client? What do they tell you about what your case is? Do you need to change what you have said?
At all stages preparing for the trial, thinking about when I get to day one of the trial, when it gets to the starting moment of the dispute being determined, have I said what my case will be? Has that changed from when we started? Have we reviewed the legal basis for a case? You might have started the case on one basis but there might have been a response to the case which changes that. Have you done all the applicable research? Not everybody loves doing research or paying for research. It can be a bit painful, but it bears thinking about throughout these interlocutory stages between when the dispute starts and when a trial starts. Do we need to reconsider the legal basis, do we need to check if there have been decisions? Do we need to see if there have been any decisions that have updated the position from when we started?
18:37
[Slide 13] What about amendments to the pleadings?
18:39
What about, now this is a bugbear of mine, notices to admit fact. If you are in Supreme Court, District Court or the Magistrates Court there is a wonderful provision notice to admit facts which is, in my respectful opinion, underused. Can we think through whether we can narrow the time the trial will take if, again, if you are in a jurisdiction that permits these things, by saying to the other side “will you admit these things?” They might, they might surprise you. That forces you to think through what are the facts? When I am articulating the case in a trial to a judge to a decision maker, what are the facts that I am going to need to prove? How are we, if we are defending party, if we are a respondent, have we responded to everything in the way that we want to? We started on a particular basis, we have said “No, that claim should be denied, it's not strictly successful for this reason”. Have we gone through and responded to everything in the way that we want to in a trial? That is ultimately all about preparing for trial by making sure that you have told the other side and decision maker in the documents you need to beforehand.
19:36
Audience: Actually a very simple question, I have only ever seen notices to admit facts issued by plaintiffs, not applicants. Are defendants entitled to issue them?
19:44
MT: Excellent question.
19:47
Producer: Can you repeat the question just in case the online audience cannot hear.
19:49
MT: The excellent question was, no such thing as a bad question in here, particularly because I am going to give most of them to Tim but I will answer this one, is “can a defendant issue a notice to admit facts and is it common?” I think the answer to the second question, to frame the first, is I do not believe it is common. My recollection of the rules, I have not gone back and specifically looked at them, but I do not think there is any limit on who can issue a notice to admit facts. Importantly, that could apply to a third party, defendant by counterclaim. At the very least, I think the concept that I am endeavouring to get across, is that you should think about, can I limit the need to have evidence at a trial? I think it is an excellent question and thank you for asking.
What is their case?
[Slide 14] What is the other side's case? If you are a defending party and someone has commenced a proceeding against you, what is the case? Do you understand it? If you sit back objectively, do you objectively understand what they are saying?
[Slide 14] There is then a difficult strategic issue that can be involved in preparing for a trial. Do I need to ask, or do I want to deliver requested particulars? Do I want to write some correspondence? Do I want to make sure that we understand what we are trying to say? Or, do I understand enough of what they are trying to say? I do not want to help the other side, because it is an adversarial system, to improve their case. I do not want to encourage them to think about things that might be a weakness. I do not want them to go back and reflect on something that we might want to say. Now, in the modern era, it is probably less of a consideration but it always bears keeping in the back of your mind because, at the end of the day, we are acting for clients, our responsibility is to put the best case we can afford those clients but obligations like rule five, for example, involve Civil Procedure Rules. I would encourage communication. Sometimes clarifying somebody's case can help lead to discussions which can resolve it before you get to trial. That is a whole other seminar, we won't go there today. For the purposes of preparing for trial, are we going to understand? Are we like ships in the night? Is this something we need to ask in some fashion?
Do we want to try to limit it? For example, is there a strikeout application? Can I apply to say “In fact, you can't run that part of the case”, either because it is hopeless (which is very rare) or because it does not make any sense, because it is vexatious, because they do not think there is any evidence to support it. Is there something we should do? What about summary judgment if it is not arguable or the case is hopeless? Do we want to try to prevent a trial? Is this something we need to do to control what the dispute will be when we get into trial?
How we prove our case - Evidence and admissibility.
[Slide 15] Any of you who have dealt with barristers, and I am sure that we all obsess about evidence, particularly if we are in a court where the rules of evidence will apply, particularly common law rules and evidence. They are so important because they control what happens. As human beings, if we have a dispute, if we have an argument, I could say anything to you, you could say anything to me, that is not often the case in resolving a dispute.
How will we disprove the other side’s case?
Depending on the jurisdiction, depending on the forum that you are in, it is very important to consider, how will I prove something? Take an elemental example, by way of an extreme example, I cannot prove there was a discussion if Jim told Bob told Dave told Sue, that something happened, that will not be admissible. Might be something we can argue about in person to person but have we thought through what the rules would be and the admissibility?
[Slide 17] Have we thought through disclosure, has the client been told if there is an obligation or a duty to disclose? Have we talked about that? There is actually an anterior question I have subsequently thought about, which is, do we want to seek dispensation from the court say the clients are not subject to disclosure? Disclosure can be difficult to show in big commercial cases. There are provisions and many rules, Federal Court, Supreme Court, where you can seek to be dispensed from that. We need to think about that, what will that mean, for the trial itself?
23:26
Expert Evidence
[Slide 18] Do we have everything? Some of these sound simple but the method of working through these things comprehensively, slowly, carefully, very important by the time you get to a trial. Trials can be important because if late disclosure occurs, witnesses might be cross examined on their credit or their believability. Why was the disclosure given late? Why didn't you give this earlier, were you trying to hide this? Might make a witness not believed in. There are all sorts of limits on cross examination and credit for very good reasons but just as an extreme example of why it is important to make sure that you have properly explained the necessity for searching for documents, seeing what they say, asking the questions you need to ask to be prepared when you get to resolving the dispute.
Do non-parties have documents? It is not unusual for the hard drive to crash and floods to wipe out records. Are there people we need to go to to see if they have things? Will they be consistent? Will they be used at trial against our client or for our client. Preparing, thinking about those things before trial is very important as part of the interlocutory steps.
24:30
I jumped the gun slightly. I love evidence, practicing in the civil sphere, not maybe as much as people who resolve disputes in the criminal sense of course, because it is much more important in that context when someone's liberty is at stake.
What about admissible documents? Is something going to be admissible? Business records. For example, in the Federal sphere, there are evidentiary provisions in the legislative scheme that apply that will make hearsay admissible on a certain basis, that make documents admissible on a different basis.
24:55
You are in the Supreme Court though. What is the document? Where did it come from? Who wrote it? Do you have to look at section 92 of the Evidence Act? Can you just assume that the thing you are holding in your hand, the thing you see on your screen and you see on your iPad, can be put before the judge? Does that have an impact on what will happen at a trial? All very important questions in terms of the preparation.
Originals. It is probably a generational thing. We are not talking to parchment and quills anymore but sometimes handwriting can be very important. Did someone sign something? Is it signed in a different colour? Do I need to get the original from somebody? Do we need to make sure we brought the original? Do we need to preserve the original in case, goodness forbid, someone writes on it? There are questions about how did this appear? Why is it not in this copy? Where did this come from? Who has manipulated this? Thinking about custody and safe custody of documents is a very important aspect of preparing for trial.
Subpoenas. As I mentioned, we need to think about that in the interlocutory stage to be ready to have documents at a trial, at a hearing. How do we disprove the other side’s? Have they given us all the documents? If yes, is it worth the time and the money? Again, all these things are a bit contextual as well. At the risk of saying everything and nothing. Is it worth chasing the other side? Are there gaps? Do we think there should be records of something? Have we thought that through? Don't do that two days before trial, if you can help it, it does happen and that is fine. We deal with it as it can but think those things through so that when you get to a trial you have had the time, you have asked the questions, you have given the advice.
What are the key documents or issues the other side relies upon? What are they saying? What would you say if you were on the other side? Part of preparing for a trial is making sure that you have engaged in the mental exercise, the self-discipline, of how would I argue this on the other side? Think about who you would have spoken to, what would you say, what are the legal points?
26:50
Contemporaneous documents can be critically important, particularly these days with the plethora of emails, messaging systems. There is a slight diversion that with messaging systems, do not forget to ask people with witnesses, do you use WhatsApp? Do you use Telegram? Have you used a messaging system? Have you used iMessage? The thing that I can tell you that you do not want is the surprise of a witness saying “Yeah, we have massive Teams chat. We had a WhatsApp group going.” “Oh, that's very interesting. Please tell me more about that.” Best to find those things out at the interlocutory stage. In fact, if you are a plaintiff, better you ask those things before you even commence proceedings. I am sure I could give you reported examples of people who have been cross examined because they thought they were communicating on a secure system only to have been shown that it was not secure and then lots of questions get asked. Better to know those things early. So, prepare, think those things through.
Again, have you spoken to the humans? It is going to be at theme for me. At trial, were there humans there? What did they say? What do they remember? If I do not remember that is okay but have you done the courtesy? Have you had the patience to treat them with respect, to ask them the question? Again, it is context and cost specific. There are some disputes, you have to be practical, you have to be sensible, there is a limit to what you can do, it is not reasonable to spend the time.
28:17
Again, from a barrister’s perspective, a trial has the critical distinction between those lay witnesses who can give evidence of things they saw, the things they heard, felt touched, etc. and those people who can give opinions. In lay conversation and increasingly within the communications we use with each other, lots of people give opinions without realising it. I have a wonderful thing, I am going to do one of my wonderful dad jokes now, with my teenage sons, they are not allowed to use the “would’ve” word in our house, which is, “Have done your homework?” “Would’ve.” “No, did you do your homework or not?” Lots of people when you talk to them, so potential witnesses, if you are preparing for trial, think through when someone says “Yeah, would have”. Do they mean “I did”? Do they mean “I don't remember, but normally I would”? Or are they speculating or guessing? The distinction between those three things is very important in preparing for the trial if the trial involves oral evidence or evidence by affidavit.
If you need opinions, is someone qualified as an expert? Do you need that? Do you need to have someone to say “I've been in this industry for 25 years. This is the way it's normally done, in my opinion”? Because sometimes lay witnesses will think they can do that. There is a decision, at least one in the High Court, Leichhardt v City Council & Jackson which talks about the admissibility of lay evidence. That is a whole other topic. Sometimes lay witnesses might be permitted to give opinion evidence in a common law jurisdiction where common law rules of evidence apply.
Do you need to get an expert to come along? Will it be admissible? Have you looked at the Holy Trinity, from my perspective, the authorities in relation to what an expert report needs to do? Are you prepared for the trial? Does the expert deal with the things in those cases that are mentioned. That is a whole other seminar for another time but I thought it might assist to have some of those key references up there on the screen for those very important decisions that deal with when an expert report will be admissible under conditions.
Again, looking at it both, principally from the perspective of a jurisdiction applying common law rules of evidence, for the Queensland rules of evidence at least. But, the statutory rules do mirror and cases like Dasreef Pty Ltd v Hawchar and others involve in some degree of thinking through the statutory element, as well as its inter-relationship with the common law.
[Slide 19] Also, I am going try and zip through these, what are the questions? What is it you want to ask your expert? What is the opinion you want to offer? How will that help prove your case when you get to a hearing? Is it properly the subject of an expert evidence or are you just asking someone to say you think they are right? And then do the experts have the documents?
30:54
TS: Sorry, I was trying to do this earlier. I just wanted to comment on one thing that Michael said and it was something my wife said to me last night. She is also a lawyer, it is an interesting house. I don't win arguments at home though. That is about speaking to humans and that is about having a courteous relationship with the other side. Barristers, I have noticed the difference since I again at the bar, are much better at that than solicitors, in my experience, because we can have some pretty nasty fights but you still have got to be able to talk to somebody on a pleasant basis and stand next to them in court or work in the chambers next to them. And so, there is a lot to be said to picking up the phone at all points of the proceeding and talking to the other side. That makes it easier when you need a bit of professional assistance, in a sense, when you need something. It also makes it easier, in my view, if it comes to a negotiation and trying to settle the matter, as well, or part of a matter.
Common on request for particulars. I had the experience of requesting particulars from a self-represented litigant a long, long time ago, when I was junior. It was a really big mistake because what we got back was hundreds and hundreds of pages of dribble, basically. It won’t always be, this is not a slight on unrepresented litigants, but this was literally dribble and just made it a lot harder for my client.
I have also had a request for particulars of a very well-respected firm and got the particulars back and they very carefully tried to change their case slightly in the particulars. I am not saying don't request particulars, I am saying be careful and think about whether you need the particulars you are requesting. When I first started practice, it was just part of the process. You used to have an order that said if you want to request particulars you do it by this time. That is no longer the case, at least in my jurisdiction. Just a word of caution.
One final other thing on the interlocutory things that Michael talked about. In the Planning and Environment jurisdiction, we use, particularly if it is under the Local Government Act, a lot, and they are very, very powerful things. They are the certificate by the Chief Executive that says this is what appears from the records of the council. Then there is this wonderful part of the provision, I think it is section 151, that says, not only is that proof that that is what is in the records, it is also proof that it is true. Now, you can deal with the weight that might be attributed to it by showing that it might not be true but it is a really powerful tool and it is not just a powerful tool in the P & E Court. I have been looking, in some criminal proceedings recently being used by a prosecuting local government. I am acting for a council where we will likely use them in a Federal Court proceeding as well. So, it is actually a certificate that has broader scope as well.
IMMEDIATELY BEFORE TRIAL
[Slide 20] Back to my area and not jumping into Michael's. The stage of preparing for a trial that is immediately before a trial, I think of this as about a week or two weeks before. It can be longer if it is a really big trial. It can be less if it is a small trial or you are not very organised and time has got the better of you. It is a good time to think about whether there is a prospect of settlement for two reasons. One, is your client is about to spend a lot of money and spend it quickly. In a short, condensed period of time you spend a lot more money than you do if you would balance that out or average it out over the period of the interlocutory side of things, generally speaking. It is also a time to think about, and I am jumping a little bit out of my normal sphere here, to think about whether you need to be making offers that would protect your client’s position or have made offers to protect the client’s position as to costs. The Planning and Environmental Court is traditionally not a costs jurisdiction. The Land Court can be and there is a lot that can be applicable there.
35:38
Understand your case
[Slide 21] I think, this is what I do, but also I think it is useful for young lawyers to do it, as a solicitor to do it too. That is, have a think about whether you understand your case properly in the period just before a trial because the better you understand the case, both at a high level, and this is the narrative or the case theory sense, but also in the details in the material. The more assistance you can give to your client, to senior solicitors, to counsel and to the court in the actual trial itself the better you can anticipate what you might need in a trial. That is the documents and things like that, that I will talk a little bit about, Michael will as well I am sure. In doing that, read through the brief that you provided, or other documents that you have again, go through it all again. I will be doing it, I can guarantee you that. I am sure Michael will be doing it as well. You will probably pick some things up with a different perspective than you have before. I say to do these things because I think it is easy, I did this, to fall into a trap as a young lawyer thinking your role, at least in the very immediate stuff before court is a bit more of a document management or administrative role – it is not. There is an aspect to that role as well. It is really important, it is critically important, but do not get trapped into thinking that the high level thinking, the case theory, the merits of the case, that is a job for your barristers, or for senior lawyers, because you have a role to play there. You won't necessarily have the experience that others do but you might know the detail better as well than some people.
37:38
Practice Directions
[Slide 22] Some things that I think, there might be a bit of overlap here between Michael and I, I apologise to Michael and to you if that if there, is there are a few things in that period that you really should be looking at closely. A lot of practice directions are the way to go, check through those because there are practice directions in every jurisdiction. In the Supreme Court and District Court there are practice directions that deal with technology, with how to prepare and how to deal with an eTrial. There is a new practice direction this year that requires that before the trial there is a list given to the Associate of names that are difficult to pronounce. Also now pronouns if desired by practitioners or other participants to the proceedings to be given to the court. That does not have to be done but I think you might find if you turn up to court with a difficult to pronounce name and you have not done that in advance you might get a bit of a chip nowadays because there is a practice direction that says if it is difficult to pronounce, send an email to the Associate in advance.
There are practice directions in the Supreme and District Court that require a list of witnesses no sooner than a day before the trial commences. There are also practice directions that deal with preparation of a trial schedule and plan. Now in my jurisdiction, there is a specific practice direction about that. Also in the Supreme Court, there is a practice direction, I will read it to you because I think it illustrates the point of this in relation to a trial plan. It says “A reliable trial plan ensures the trials are allocated an appropriate number of hearing days, trials conclude within their allocated dates, the costs of preparation for trial and trial are minimised.” These are all the reasons why you have reliable trial plan. “Witnesses are not unnecessarily inconvenienced, expert witnesses in the same field give their evidence concurrently.” That is, they sit in the box at the same time. That is a practice that is common in the Land Court, not in my jurisdiction, but the Planning and Environment jurisdiction. “Or, they give it consecutively one after the other. Trials are conducted, if appropriate, as electronic trials so as to reduce the length of trials and their costs.”
That is a good summary of, I think, the things I am talking about, and Michael will probably talk about as well, and has earlier already. Those go to case management and efficiency because the court is very conscious that trials go to court in an efficient way, not just for the parties to the proceeding, but also to other parties who might want to get their trials on. If you have a trial that is supposed to go for three weeks and it has not been well managed and falls over, you have parties that will have missed out on those three weeks and judges, they won't be twiddling their thumbs, they will be doing other things, but they won't be hearing in cases necessarily.
There are specific directions about issues documents. Michael talked about a statement of case in the Federal Court. In the Planning and Environment Court, before you go to trial, there is a requirement that seven days beforehand you prepare a document that identifies the precise issues that need to be decided in court. That is despite the fact that you have pleadings already. In the Planning and Environment Court, you have a notice of appeal and you probably have a set of reasons for the other party's position identified already. Those will fix the issues in the appeal but then you have to really focus on the narrowing for the judge, what are the questions the judge is required to answer.
41:40
Trial Plans
[Slide 23] I touched on a trial plan or schedule before. This is an example of one that I had for a trial last year. It was set down for five days, it was set down on the Sunshine Coast. The hearing on the land was also on the Sunshine Coast. I am not sure if this is common in other jurisdictions but it is very common in the Planning and Environment Court to inspect the land that is the subject of the dispute with the judge. So, on the first day we had an opening, that probably went for up a couple of hours, where we tended to relevant evidence and we basically told the judge what the evidence was going to be and what the case was about. Then we went with the judge to the land. It was just the barristers and the judge and we gave some ideas about…we told the judge, pointed out features of the land that are relevant to the evidence that the judge is going to hear. Inspection itself is not evidence but it helps inform the judge about understanding the evidence.
Next day, we had three witnesses, they were all expert witnesses. They were all economists and they all gave evidence that day. The day after, there was provision in the trial plan for lay witnesses. In the end, we just relied on statements and did not require any of those for cross examination. And we had town planning witnesses. One of those witnesses, Mr. Buckley, gave evidence by video from Melbourne. This goes to a point that I will make in a second. I think Michael might emphasise too, that was a surprise to everybody. It was a surprise to him that he would have to give evidence by video as well because there had not been the appropriate checking beforehand to see when witnesses might be available to give their evidence.
The Thursday we had a lay day, we did not do anything. [Laughs] No, we spent a lot of time on our written submissions and in closing addresses. That happened on the Friday. As it turned out, in this case, we were part heard. The closing addresses took some time, there were a lot of questions asked about the various cases. We did not go back until March this year. So that was November, back in March this year. Part of the purpose of the trial plan is to avoid that happening. We were unlucky in this situation, it is a bit unusual with that sort of timeframe. You don't want that, it is not desirable for the client because it costs more money. They have to wait longer for a result and the court has got to be refreshed, I am sure the judges do not like it either.
44:34
Preparing for Court
[Slide 24] There may be a bit of overlap here again, I apologise. Immediately before a trial is the time for you to work out what you are going to need to give to the court and you should not be doing that on the morning of the trial because you will everybody else in the trial to have a heart attack and probably yourself to. This is the time to look through practice directions also. One of them I meant to mention earlier was, if you are going to be producing case law, authorities, during the trial, there is a practice direction that says which of the authorised reports that are preferred, you should use those. If you do not use those, you will get some funny looks, or they won’t be funny. It is difficult as well because other cases refer to reported cases and you will have the wrong page numbers, it will just be a real mess.
Time to think about how many copies of documents you need to tender. You can ask your barrister how many they want, you can ask your senior solicitor as well if you do not know. My rule is have two more than you need, just in case, because people lose things. You never know, your client might want one, or another witness sitting in the back of a court might want one as well.
For any eTrial, be familiar with the system that is being used. Get in there early. The same goes if you have got an eBrief, be familiar with how to navigate it as well. You should be by that point but there is a real need to make sure that documents are going to be uploaded in enough time. I was in court on Wednesday with a judge saying “Well, the eTrial register needs ten days to get an eTrial ready and you want to get heard next week so that won't work.” You will be surprised, perhaps, that judges do talk to the trial registrar. They know if you are not organised. I have seen it a number of times. So, you have also got to be organised in that sense as well because the judge will know before when you don't think they do.
I have said on there, work out what the judge’s preferences are. Talk to your barrister, talk to other senior lawyers to work out what they want before a trial and how they want it delivered. You can ask the judge. I think the way to do that is a joint email with the consent on the content of that email, but just in a unilateral email, proposing to do X, Y and Z, saying “can you confirm whether that's acceptable?” to the judge. Judges have different preferences. For a trial last year when the judge ordered everything delivered electronically by email beforehand. My instructing solicitor knew that because she worked in that jurisdiction. It was in Cairns. I have had other judges who say “I want hardcopies delivered only. I don’t want to see anything electronic”. It is the same about preferences for eTrials. I know one particular judge who you ought to assume that the trial is going to be an eTrial. Whereas others, you ought not assume that. You could propose it and you might get it, you could equally just go just straight to an old school document heavy trial.
48:12
Part of this preparation is also to talk to you witnesses. Work out what their availability is and what their constraints are. More than just that, get their contact details. Where are they going to be? Do they know how to use however they are going to give evidence if they are going to give evidence remotely and familiarise them with the court process if they are not familiar. That goes for expert witnesses as well as lay witnesses because the expert witness may never have given evidence. There are two types of expert witnesses. There are expert witnesses who are experts in their field and experts at giving evidence. Then there are those who are just experts in their field. The experts in their field will probably be very nervous. You will want to familiarise them as well. That is talking to them about where the judge sits, what the bar table might look like, where the witness box is, also how you address the judge or other participants in the courtroom, “Mr Trim, Miss McCombe”. It might be your role, it might be others in your team to assist the witness with how to answer questions, not what they say, but how they are to answer questions. Listen to the question, answer that question not some other question. Be honest and polite, do not argue. That sort of thing.
49:41
I prepare, this is something different to witnesses, but I prepare, in terms of document management and trial, I prepare a four page or five page, depends how long the trial is going to be, blank sheets with a line down the middle effectively, numbers down one side. That is my exhibit list, I fill it in as I go. The first column is the numbers, the middle column is the document title, the final column is who tendered it. I keep that running throughout the whole trial.
The other thing I would say is make sure you bring relevant legislation to court. That includes, for me that is the Planning Act and Planning Regulation Planning and Environment Court Act, but it includes rules. It includes the Evidence Act as well. Your barristers are more than likely to have them but you do not want to be sharing it with the senior counsel because they want it as well as you.
50:46
MT: How is everyone doing? Still awake? I am conscious of the time. I will try to rip through this. This can all be very daunting, can I just say. These days, we are very lucky and very fortunate that there is a significant amount of effort, particularly in jurisdictions like the Federal Court, like the Supreme Court and a lot of information online. Ask someone if you are not sure. My own personal practice, I don't think there is any such thing as a silly question. I might revise that view one day. I would much prefer a telephone call, I would much prefer to work in a team with someone who rings me with “Have we thought about that, or what about this?” Or “how am I supposed to do that?” Just ask. Sometimes preparing for a trial is just about teamwork. It is much easier and much better if we talk to each other so please do that.
Also, I wanted to pick up on something Tim said. There are some very helpful documents online that give you checklists. One of the ones that I used as a much younger lawyer in the Supreme Court of Queensland, there was a practice direction about readiness for trial. There was a similar thing in the rules, it had a very long, very extensive list but it was very good to go back to, do not leave it till the week for the trial, have reference to it, have a reference to these sorts of things so that you know what you are doing.
DURING THE TRIAL
Hardcopy v Electronic Trials
[Slide 26] Now, I am going to skip through this because we know that time is pressing. I wanted to talk about something that Tim touched on, which is these days is it an old school trial or a new school trial - is it a hardcopy or electronic? The differences in preparing for trial are significant and we need to be conscious of it. Preparing for trial is about thinking about that. During a trial, it becomes critically important because during the trial the preparation as you go can vary significantly depending on which one or the other.
Hardcopy Trials
[Slide 27] Old school trial, do we have trolleys? Do you have things to hold folders in? In what form will the documents be? Will they be stapled? Will they be in folders? Think about those things, you will need to manage those things. Do you have enough people to manage them at the trial? What format will they be? Does someone have a preference? Some people hate staples, do check that, please. It is a personal bugbear of mine as well. How do you ask those who are doing the advocacy, whether it is a solicitor advocate, a barrister or senior counsel? Talk to them about how they want them prepared. Talk to them during the trial, that can change.
[Slide 28] Agreed trial bundles, both electronic or hardcopy, but it is particularly important with hardcopy. Get that agreement, do an index, do a proposal, talk to the other side. I am going to go through this a bit like Dennis Denuto.
Electronic Trials
[Slide 29] Now I love electronic hearings in truth. I think they are the becoming the norm. They are terrific. They lead to efficiency but they raise particular issues in preparing before and during the trial.
The first issue of an electronic hearing is, are you actually doing it in a courtroom or in a room? The Christie Centre, for example. Are you doing it down at the Industrial Court? Where are you doing it? Feed that through because it can be quite important. If you are doing it in person, what is the technology like? What are the facilities like? Where will people sit? Preparing before and during the trial, it is very important to think those things through. Who will do a test run? Who controls the video? What would the video look like? Do you need an external provider? No doubt some of you have had that experience already. It is becoming very common. There are some fantastic providers out there. I think the Supreme Court has a fantastic system for what it is worth for running eTrials, it does the job. The Associates are terrific at it. I think they do a wonderful job - a little advert for the Supreme Court of Queensland. The Federal Court has a terrific system, different but it runs very efficiently. The courts I think are to be commended for the way they have adapted.
Hardware. Now look, you are all much younger than I am. Think it through though because there is nothing worse than something crashing, something that has not been thought through because an advocate’s system is crashing, as your system is crashing, the system of the whoever's controlling the documents, does it work?
Have you thought through internet speeds? These days, remote evidence that can be critical. Obviously, the courts are well set up, they have fantastic systems. Most people, most advocates will be well and truly across this but what about the witnesses? If someone is giving evidence from Barbados, what will their internet speed look like? I do not know what the internet speeds are but you should think it through because that will control the quality of the evidence that person will give, their ability to hear you, their ability to hear the advocates, the ability to persuade. That is very important for an electronic dispute resolution.
[Slide 29] Technical support, do you need somebody in the trial to help you manage it? If you have an external provider it probably becomes a bit moot but even if you have an external provider, do you need somebody just in case something goes wrong? When you are on your feet like me and you talk as much as I do, I know I do, it is my dulcet tones that are keeping you awake, but when you talk as much as I do, it can be hard, you cannot do the practical things. The things you can do in your office, you can search, you can do all those things sitting at the bar table, you cannot do them as an advocate necessarily. You cannot say to the judge “I'm sorry, I just need 10 minutes while I do a search for something”, it is not going to work. Trials, hearings are very dynamic. It is important to think that through in terms of what to do during the trial, how you prepare.
What if it goes wrong? I have a little 5G internet dongle that provides 5G internet speeds that I bring with me. It handles twenty devices or more at once. I had to use it in electronic hearings, especially while we were all having to do it differently. That can be useful to think it through. Talk to technical people if you are not technically minded, what will happen if something goes wrong? What is the backup plan?
56:08
[Slide 30] Witnesses, if they are not in the room, do they need a hard drive? Do they need a USB? Do they need access to some cloud system? What will happen if that does not go right? That can be important during the trial. What would you do during the trial if it happens?
If this is a technical thing, sometimes you have got to be careful about what will happen when witnesses need to be shown documents. Where you have more relaxed rules of evidence, in jurisdictions where the rules of evidence are more relaxed, that might not be such a big deal. The Evidence Act, for example, in Queensland has a whole section dealing with the reception of audio-visual evidence, that is important to look through. Some of those sections it can be important to satisfy. Now, our courts have been wonderfully facilitative. I think they have done a fantastic job through the various years we have been through. Think those things through. There are laws you need to comply with.
What about laws in a jurisdiction if someone was in a different jurisdiction, is it legal? It is an awkward question but have those issues been sorted out before the trial? What you do not want is that to be dealt with when somebody is giving their evidence.
This is a practical thing, what happens if a witness needs to mark a document in an electronic hearing? That can be quite important. That will mean, in the trial, can you email a copy? Can the witness have a hard copy that can be scanned and shown on a photograph? How will that be preserved? I am going to get to in a minute, if a witness is giving evidence remotely in a courtroom, sometimes it can be both necessary or preferably desirable to have an independent lawyer in the room arranged by one of the parties to preserve the integrity of the evidence but also to deal with practical issues like this. So again, if there is a plan, where did this happen? But where was this on site? Where was that excavated? Where did that occur? Where did it fall? On that document, what is the important clause? If the witness has a facility, is there someone that can mark and can be preserved by an independent lawyer that can then be sent back and potentially tendered into evidence. A part of something during the trial that needs to be thought through.
[Slide 31] Again, do witnesses need hard copies? Do you need an independent observer? We are just going to skip through, there are less significant issues in here.
[Slide 32] If you are all in the same room, is it big enough? Electrical points, internet connections, where are you in a room? Do the phones work? During the trial, those things can become quite important, they can become irritating for the decision making if they are not thought through, who is managing those things? I think Associates in the Federal Courts have done a fantastic job, many of you have done it. Congratulations, my experience has been very positive and made my life as an advocate much easier. Those things need to be thought through.
How has a document been marked? When a document is received in evidence, just because you have a big collection does not mean it is part of the body of documents the decision maker will use to decide the dispute. Who keeps track of the 10,000 documents that are there sitting there ready to go if they are electronically, as opposed to the exhibits that are part of the body or the record that the decision maker uses to decide the dispute? Who is keeping track? As Tim said, exhibit lists are critically important. Certainly, if you are working with me, I will ask you to help me to do that – preparation of lists and exhibits during trial.
I have only got a couple of slides left, you will be pleased to know.
Formats of Documents During a Hearing
[Slide 33] I do a lot of construction and infrastructure disputes where there will be, for example, a program. During a complex construction dispute, it is common for there to be a complicated piece of software, like Primavera for example. The native version of those documents might not necessarily open on all platforms, think that through. What you do not want is, I am going to cross examine the witness document, oh dear, it is not opening it is not working. That is part of preparing for an electronic trial in the current era, thinking those formatting issues through.
Can I move a document around, can I blow an image up? Again, my experience has been in the various courts we have in Queensland it has been so much easier because people are very, very good at these things. In fact, electronic trials, hearings, provide very efficient ways of doing it.
[Slide 34] Two to go, I am nearly there, I promise.
What do we need to do at the start? There is my fancy animation.
1:00:07
Audience: A question on the format of documents. Obviously, earlier in the proceedings, when you disclose documents, you will be disclosing what your client actually has and the original format, like a DWG format or something, that just would not open on a regular computer, right? How would you then prepare that to be in a format that can be displayed in a trial? Do you need to put it in an affidavit that this is the correct copy converted?
1:00:36
MT: Excellent question. The question for the benefit of those who are online, I am actually remembering, Tamara is nodding at me, I have done something good today, is what do we do for the native format? How do I get that onto the system? It is an important thing to think through. It all depends on the jurisdiction. Let me go from one end of the extremes.
If you are in an arbitration, probably just arrangement the program, the parties might have to pay for it, again cost dependent, depends on what kind of dispute.
In different jurisdictions, in the Federal Jurisdiction you might be able to take advantage of the provisions of the Federal Evidence Act to do that.
In Queensland, it can be a matter of thinking through the practicalities, rather than the legalities. Again, notice to admit documents. If you have documents admitted into evidence because of an oath to admit documents you probably do not have this issue but it can be as simple as converting it into a PDF, JPG, different format. So, you work backwards in a sense, which is, what is the facility available to you during trial? What will they do? Then, how can I make that happen? Then, if I need to comply with strict evidentiary rules, if there is a quasi-criminal prosecution, for example, what are the provisions of the evidence laws say in particular jurisdiction that I am in. It may be, for example in Common Law, to take up the point, that you may need an affidavit from somebody, I have done this. I think, though, more often than not, in civil disputes, again I am going to leave aside quasi-criminal proceedings because they are a whole different beast, more often than not, you would find a practical solution to that, where you would communicate with the other side, you might seek to raise it as a pretrial issue. So, it is part of preparing for trial thinking about these things through, raising it with the court “I've got this issue. We'll need to open these documents.” It is exactly for those reasons that you need to think it through. If you do need the affidavit that way, you can be prepared and have that ready to go during the trial. Thank you for raising that.
1:02:22
Something that is very important, what you do not want is someone like me going “Can I have a disclosure certificate please”. So in a trial, in the Supreme Court of Queensland, the District Court, rule 226 provides that it is very important to tender, usually at the beginning of the trial, a certificate from the solicitor with the conduct of the matter explaining the duty of disclosure as otherwise set out in the rules. Make sure that has been thought through, the certificate has been prepared in the right form, ready to go during the trial. Make sure you have talked to your barrister and made that available and have it ready to go at the bar table. It is very important because it gives the court, of course, the confidence that clients have had their obligations explained to them. It is a mandatory requirement that can get a little bit buried away sometimes in the rules, so don't forget about that one.
Security for Costs
Now, this is a bit of a left field one. If you have security for costs, for those who may or may not practice in jurisdictions where this applies, if you have another party, a plaintiff who is bringing a case against you, you are concerned it is impecunious, they might not be able to pay your costs, various jurisdictions have rules that allow you to get security. So, you apply. They have to pay money into court if they want to prosecute their action, whole bunch of complexities, another seminar for another day. This is a thing for during the trial. That may only go to commonly on the authorities and practice day one of the trial. You need to be prepared with evidence of what the cost of the trial will now be to deal with that on day one. What are the costs of the trial, what solicitors cost, barristers cost, unit cost assessor, those sorts of things to think through. If you have a case where you are a defending party or plaintiff by counterclaim and you have a successful existing security for costs, or even if you have not, you can apply if you have concerns about solvency before the hearing.
Objections
[Slide 35] Last slide. We have objections or peripherally in the civil jurisdiction these days objections are becoming fewer and far between but you must not lose sight of them. Objections can critically decide disputes. Preparing for trial, how do we sort that out? We need to have a set of documents, tables that cross reference into those. That way, then the resolution of those objections can be done in an ordered and efficient way.
Authorities
[Slide 36] Then lastly, again I am getting excited with my animations here, showing my age. Look at that, it was a wheel.
Tim has mentioned this, is it an authorised report? The practice direction covers it. Old fashioned people, we used to have the CLRs and ALRs. When I was a research clerk many, many years ago, I was screamed at at least once because I forgot this. During the joint bundle of authorities try and think about the matter from the perspective of the decision maker. Can you help the decision maker which will of course make your advocacy better by saying “Here is a joint bundle, so we don't give your Honour” or the arbitrator or whoever it is “three copies of the same case, we just keep one. We talked to each other beforehand so that when we get to the trial it's efficient and we haven't killed too many trees”.
Practicalities
[Slide 37] Thought that was the last slide.
In a trial, what if something needs to be got from the office urgently, have you got someone there to do that? Is there a graduate, a young lawyer, somebody that is going to be able to deal with the practical issues. Again, this is a little cost dependent, depending on the nature of the dispute we are dealing with.
Who is going to coordinate witnesses? Can I encourage you to make sure for witnesses, as part of the preparation for trial, that they understand the procedure. It is a confronting thing, we all get used to it because we go to trials a lot or more than others. What is the format of a trial? What is it going to look like? What is it? What is the expectation in relation to dress sense? What is the expectation in relation to courtesies? If people have never been into a courtroom, what does it look like? Explaining all those things to a witness is very important so they understand the process, it can help reduce anxiety.
That gets to my last point, which is a little bit of a bugbear of mine. We are all human beings, people get sick, people need water. It can be important as part of the preparation of the case, during the trial. For witnesses on the witness stand for hours and hours on end, can you make sure that...You cannot talk to a witness under cross examination, I am sure you will be aware of or become aware of the rules about that in different jurisdictions, but make sure people know. Get something to eat yourself. If you are not feeling well, please tell me. Most of all, let's all treat each other with respect so that we can perform the important societal function I think we all play to the best of our abilities.
That is all I am going to ramble on about. That was a little longer than we anticipated. If we have any questions I will be glad to defer them to Tim.
1:06:49
Anybody have any questions they would like to ask, here or online?
1:06:56
Audience: You mentioned before that it can be common practice in terms of security for costs for it to arise on the first day of trial and that it may be a matter of during that trial that it is revisited. How is that factored into the trial plan?
1:07:13
MT: There is something that Tim touched on that I should have explained. It is not just in the Planning and Environment Jurisdiction, in my experience now, it is almost commonplace in any trial you need to have to have a plan. That would be something you need to think about, as how long is that going to take? It is an excellent question because that is often day one, usually first thing. That should be part of the preparation because you should have served an application, should have served material. That is all part of the preparation for the actual trial itself. Then there would need to be a time allocation for that. Same with objections to evidence that you would need to prepare the trial plan to allow for four hours on day one, for objections for two hours or one hour. If there is an application for security, how long is that going to take, twenty minutes, half an hour, is it contested? So, that is communicating with the other side, preparing your own case, being ready when you get there with the issues to find, communicated and prepared.
1:08:03
Audience: On that point, I have seen, for example from judges like to have a separate objections hearing, evidence before the trial. Does that happen for the security of costs?
MT: It can do. You can separate just about anything. Often, in preparing for a trial, you can have a pretrial conference with the trial judge. Then those sorts of issues can be raised and scheduled. The old-fashioned practice was that it all happened in the trial but increasingly those things are being dealt with in advance. Things like objections, if you have a lot of objections that may need to be dealt with beforehand but the old-fashioned view would be just do it all during the trial. You have to have scheduled for that, prepared for that, allowed for that. Thank you.
Well, unless anybody has any questions, here or online…We have obviously done such a good job of persuading you or boring you to insensibility…Can I thank you all again for coming. It is lovely to have the opportunity to present to you tonight. Tim and I will be around for a little while. Hopefully you all have a chance to stay for drinks and thank you very much.
1:09:12
Rhiannon Dudley (QYL): Thank you so much on behalf of QYL to Tim and Michael for attending tonight. Your time and knowledge is an invaluable asset and sharing it with us is fantastic. We all invite you to stay back and have some drinks and nibbles and also have a general chat. Thank you to our online viewers as well, you have been excellent.
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