Maurice Blackburn CPD Seminar, 4 November 2015

CPD POINTS FOR LAWYERS

Maurice Blackburn 4 November 2015

CPD Seminar - 4 Nov - Maurice Blackburn

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We wish to acknowledge the traditional owners of the land and pay our respects to elders past, present

and emerging.


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TODAY’S AGENDA

Agenda:

Introduction

• Practice Management: How to ensure best practice management in a fast-paced environment. Presented by Giri Sivaraman, Maurice Blackburn.

Short break

• Advocacy: Essential skills for appearing in the Commission or Court. Presented by Cate Hartigan, Barrister.

• Ethics in Arbitration: Dealing with your union’s officials and other witnesses, as well as opposing witnesses. Presented by Bob Reed, Barrister.

Closing and questions

PRACTICE MANAGEMENT: HOW TO ENSURE BEST PRACTICE MANAGEMENT IN A FAST-PACED ENVIRONMENT.

Giri SivaramanPrincipal, Maurice Blackburn

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PRACTICE MANAGEMENT

Topic One: Professional ConductTopic Two: Case and Client ManagementTopic Three: File Management Topic Four: Resources and StaffTopic Five: Risk Management and Compliance


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Topic 1:Professional Conduct


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PROFESSIONAL CONDUCT

In managing a practice, it is important to have policies and guidelines with respect to:

• Conduct toward clients (members);

• Conduct toward opposing parties;

• Conduct toward counsel;

• Conduct toward the Court.

Solicitors’ conduct is governed by the Legal Profession Act 2007 and the Australian Solicitors Conduct Rules.


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CONDUCT TOWARD CLIENTS

• Solicitors’ obligations in respect of their conduct towards clients are dealt with in the Australian Solicitors Conduct Rules, Rules 7 to 16.

• Rules 7 to 11 deal specifically with advice to clients, instructions from clients, and dealing with conflicts.

• The remaining Rules deal with terminating engagements, exercising liens over documents and charging for storage, which are not relevant to today’s presentation.

• Rule 7 requires solicitors to provide clear and timely advice to clients, so that the client understands the relevant legal issues and is able to make an informed choice about action to be taken.

• Rule 7 also requires a solicitor to discuss alternatives to trial with clients, such as mediation or other forms of alternative dispute resolution.

• Rule 8 requires solicitors to act on their client’s instructions, provided it is lawful, proper and competent.


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CONDUCT TOWARD CLIENTS – WHO IS THE CLIENT?

There is no authoritative answer to the question:

“Is the Union my client or is the Member my client?”

This question does not appear to have been formally answered by a court or tribunal.

However, a Union’s legal officer’s role is analogous to that of in-house counsel, who provides advice and assistance on the instructions of his/her employer.


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CONDUCT TOWARD CLIENTS – WHO IS THE CLIENT?

For in-house counsel, the client is the entity as a whole. Therefore, the solicitor’s paramount obligation, including in relation to confidentiality, is to the employer.

• If assisting a member, can do so, as long as it does not impinge on duties to employer.

• If member’s instructions or interests are in conflict with the union’s interests, the solicitor should decline to accept the instructions.


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CONDUCT TOWARD CLIENTS

• Rule 9 deals with confidentiality requirements:

A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:

a) a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or

b) a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client.

• There are exceptions to the confidentiality requirements, which relevantly include where the client has authorised the disclosure.


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LEGAL SERVICES COMMISSIONER V SMITH [2014] QCAT 518

• Smith took instructions from client to file personal injuries claim against a hospital.

• Smith served the notice of claim on the hospital in 2002. Between 2002 and 2005, Smith received several letters from the hospital’s lawyers asserting the notice did not comply. Smith did not respond.

• Prior to the expiry of the statutory limitation, Smith attempted to get the matter back on foot in the District Court, however, took no substantive action.

• In 2006, Smith provided the hospital’s lawyers a copy of the claim and statement of claim. The hospital’s lawyers said they were still non-compliant.

• Despite not communicating with the hospital’s lawyers at all, Smith wrote to the client advising that he had asked the hospital for a compulsory conference. A few weeks later, he told the client he had not had a response to his request (which had not actually been made).


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• Smith faced a number of adverse findings. Relevantly, his dishonesty toward the client, and failure to act on the client’s instructions with a reasonable standard of competence and diligence led to a finding of professional misconduct pursuant to s 419 of the Legal Profession Act 2007.

• Smith was publically reprimanded, fined $6,000.00, and required to engage advice as to the improvement and implementation of appropriate management systems of his practice

LEGAL SERVICES COMMISSIONER V SMITH [2014] QCAT 518


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CONFLICTS WITH MEMBERS

Rule 10 requires solicitors, and a practice, to avoid conflicts between duties owed to current and former clients.

If the solicitor or practice is in possession of a former client’s confidential information, and such information, if disclosed to the new client, would be material to the new client’s matter but detrimental to the former client’s interests, the solicitor and/or practice cannot act for the new client unless:

• They have obtained written consent from the former client; or

• They have developed an effective information barrier.


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CONFLICTS WITH MEMBERS

Rule 11 requires that solicitors and/or practices, not act for two or more clients in the same or related matters where their interests are adverse and there is potential or real conflict of the duty to act in each client’s best interests.

▪ Exception is where each client is aware of, and has given informed consent about, the solicitor and/or practice acting for the other client


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INFORMATION BARRIERS

Initially, Australian courts were wary of information barriers – Bryson J in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at [123]:

“it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently… even by people who sincerely intend to confirm to control”.

Courts have adopted a more accepting, but still cautious and scrutinising, approach.


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INFORMATION BARRIERS

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550 – Bergin J found an information barrier to be effective to protect the clients’ confidential information and avoid a conflict.

However, in Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350, Bergin J found the same information barrier to be ineffective, after the plaintiff brought evidence that it had been breached, albeit inadvertently, and in circumstances where no confidential information was leaked from the barrier.


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AVOIDING CONFLICTS

• It is important to have a system in place that assists with the identification and avoidance of potential conflicts.

• Member databases and records (especially electronic) should contain full details of any disputes in which the member has been involved, including details of other relevant parties.

• Prior to opening a case for a member, the practice should be able to check that there is no apparent conflict with respect to assisting the member.

• If the union’s database and electronic records are detailed, this check should be fairly streamlined.


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AVOIDING CONFLICTS

• If there is a conflict, but the union is minded to assist the member, it may be necessary to outsource assistance for one of the members. This avoids the need for an information barrier.

• It is important that the union has a policy and guideline for identifying and assessing conflicts, as well as the actions to be taken in response to potential conflicts.


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CONDUCT TOWARD OPPOSING PARTIES

Rule 22 prescribes how a solicitor is to communicate with his/her opponents.

• The Rules are mainly concerned with ensuring solicitors do not provide opposing parties false information, or knowingly make false statements.

• The Rules are also concerned with ensuring solicitors provide one another proper notice when communicating with the court, including in respect of seeking adjournments.

• The Rules require solicitors to promptly tell their opponents about communication that passes between the solicitor and court.


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CONDUCT TOWARD OPPOSING PARTIES

• If a solicitor is going to communicate with the court, in the absence of his/her opponent, the solicitor must only do so if:

• The court has communicated with the solicitor first, and the communication was in such a way that it required a response from the solicitor; or

• The solicitor’s opponent has consented beforehand, and the communication is in accordance with that consent.


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CONDUCT TOWARD COUNSEL

• Sometimes union’s directly brief counsel, as opposed to engaging solicitors.

• The Rules do not prescribe the way in which solicitors are required to communicate with counsel.

• Instructions for counsel include:

• the clients’ instructions and evidence;

• The status of the matter (i.e. has it been filed? Has a first court date been set down?)

• The nature of the work required of counsel (i.e is counsel just amending draft pleadings? Is counsel engaged to represent?)

• Due dates and dates for court appearances.


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CONDUCT TOWARD COUNSEL

• It is not usually necessary for counsel to have all documents provided by the member.

• Providing counsel all documents, without first filtering them, or organising them, can lead to the union incurring unnecessary costs.

• This needs to be balanced with counsel being fully informed of the relevant circumstances.

• Having a template brief will assist industrial and legal officers with ensuring counsel is provided relevant and ordered information.

• It is important that you are clear with the member that they are not to contact counsel directly, and all communication is to go through the union.


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CONDUCT TOWARD COURT

• Rules 17 to 21 deal with how a solicitor is to deal with the court.

• Rule 17 requires a solicitor exercise forensic judgment and not to act as a mere mouthpiece for the client.

• Rule 17 also provides that a solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.

• Rule 18 provides that a solicitor must not, in the presence of other parties, deal with the court on terms of informal personal familiarity, which may give rise to the perception that the solicitor has special favour with the court.


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Rule 19 is extensive and deals with solicitors’ obligations about being honest and frank with the court. These obligations are far reaching. For example, Rule 19.6 provides

A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

• any binding authority;

• where there is no binding authority, any authority decided by an Australian appellate court; and

• any applicable legislation,

known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.


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Rule 21 deals with the responsible use of court process and privilege.

• Documents produced by unlikely to be considered privileged for the purpose of court proceedings. They are also unlikely to be protected from discovery.

• A practice, policy or guideline about written communications is important.

• Rule 21 is also aimed at ensuring the court’s processes are not abused, in that they are not being used to serve some improper purpose.

• While it is important for unions to have legal processes available to achieve industrial goals, it must not amount to an abuse of process, and a solicitor must not knowingly engage in an abuse of process.


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Consequences for failing to be frank and honest toward court, and for engaging in abuse of process, can be significant.

• Puryer v Legal Services Commissioner [2012] QCA 300:

• Convicted of misleading the Supreme Court;

• Found to have failed in obligation of frankness and candour;

• Name removed from roll of practitioners.


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Michael Harmer in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 and Ashby v Slipper [2014] FCAFC 15:

• Federal Court found Harmer’s conduct was an abuse of process;

• Federal Court dismissed Ashby’s case on that basis.

• Ashby and Harmer both appealed – Ashby’s was upheld, Harmer’s was not


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Topic 2:Case and Client Management


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CASE MANAGEMENT

It is important for unions to have a structured and accessible case management system.

System should:

• Efficiently identify apparent conflicts

• Allow the union to track trends across:

• specific employers

• Industries

• member demographics.


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CASE MANAGEMENT

There should be a central system for recording key dates, especially limitation dates for initiating proceedings.

Also consider systems for tracking or reviewing:

• The number and type of matters allocated to industrial officers or legal officers, to ensure they are operating within their capacity.

• All documents provided to the union.

• The conduct of casework by an experienced practitioner, who should conduct periodic file reviews.

Structure and format of files should be consistent.


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CLIENT MANAGEMENT

Initial contact

• Managing members, and their expectations, can be very difficult if boundaries are not established from the outset.

• A checklist of matters to go through with the member at the initial contact stage can be helpful.


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CLIENT MANAGEMENT

• Checklist inclusions:

• The extent to which the union is willing to assist, at this stage;

• The union may not continue to provide assistance, particularly if the member refuses to follow advice;

• The union will endeavour to return calls and emails efficiently, this may take up to 3 days;

• The union is not in a position to provide financial advice about taxation arrangements on settlements;

• The union is only able to take instructions from the member, not any third parties;

• The spectrum of risks, including costs risks, of pursuing a matter.


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CLIENT MANAGEMENT

Conducting the matter

• Ensuring the member is fully aware of the nature and risks associated with proceedings is important.

• Consider a written agreement with the member, which acknowledges:

• The members’ rights and responsibilities;

• The union’s right to terminate the engagement;

• Who is liable for any costs;

• The member’s understanding of the assistance that is going to be provided.


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CLIENT MANAGEMENT

Conducting the matter

• Keep the member informed:

• Contact details of the IO or legal officer assisting them

• Relevant dates

• The role of all parties in the process

• All material received from the opponent or court

• Progress and status of the matter

• Prior to any conference, the member should be aware of the union’s position on taking the matter further if it does not settle.


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CLIENT MANAGEMENT

Finalising the matter

• If the matter is finalised by negotiated outcome, the union should keep a copy of the deed on its files.

• Ensure the member fully understands the effect of the deed.

• Comply with record keeping requirements


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Topic 3:File Management


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FILE MANAGEMENT

• Rule 4 states that ‘A solicitor must also deliver legal services competently, diligently and as promptly as reasonably possible.’

• File management is one mechanism that can be adopted by unions to ensure systems are in place to keep track of files, to ensure matters are actioned without unreasonable delay and to avoid exposure to liability.


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FILE MANAGEMENT

• File management can include:• Standardised procedures for opening of new files;

• An up to date file/matter register listing files and member’s details (as well as the allocated industrial officer or legal officer );

• Procedures for locating files and documents and for monitoring activity in all open files;

• Central system for critical dates to be recorded, monitored and complied with;

• Reviewing files ready to be closed to ensure all steps have been taken to complete the matter;

• Appropriate mail opening and distribution processes (inc. electronic mail);

• Document retention policy for files and records.


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ORGANISATION OF FILES

The file should contain a complete record of all aspects of the matter.

Organisation of files may include placing contents into sub-files according to class or type of documents. For example each file may contain sub-files for:

▪ Member details;

▪ Communications, including: correspondence; memorandums to file or notes of conversations; meetings; or telephone calls arranged chronological;

▪ Original documents;

▪ Legal research;

▪ Statements;

▪ Court documents.


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IMPORTANCE OF KEEPING FILE NOTES

Bakovski v Lenehan [2014] NSWSC 671 (27 May 2014)

Two very different versions of events:.

• The couple said they were just told to sign the documents with no advice about them provided by the solicitor.

• The solicitor said he gave advice about the documents and that the couple should not enter the transaction. However, the solicitor had no file note or any correspondence to the clients confirming his advice.


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IMPORTANCE OF KEEPING FILE NOTES

Bakovski v Lenehan [2014] NSWSC 671 (27 May 2014)

Justice Hall concluded that:

▪ The failure to make a file note or other record is contrary to the expected practice of an experienced solicitor;

▪ The failure to do so in the circumstances of the case, calls for explanation;

▪ The non-existence of a file note or of any other document recording the “strong” advice allegedly given . . . is, at least, consistent with the conference of 13 August 2004 having proceeded in the way in which (both clients) said it proceeded.


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KEEPING GOOD FILE NOTES

Keep detailed file notes of all conferences and telephone conversations with members and the other side in court proceedings.

File notes should be:

▪ Dated;

▪ Identify the author;

▪ Record the duration of the attendance;

▪ Record who was present or on the telephone;

▪ Be legible to you and someone else;

▪ Record the substance of the advice given and the members response/instructions.


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FILE AUDITS

Unions should implement a file review/audit process.

Audits should:

• Review substantive legal aspects

• Check key tasks have been completed and actioned competently and in accordance with file management procedures.

Taking steps to address issues that emerge from file audits helps ensure that processes can be developed and improved over time.


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Topic 4: Resources and Staff


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KNOWLEDGE MANAGEMENT

Knowledge management involves establishing effective processes, for all types of knowledge, including:

▪ Creation or capturing knowledge;

▪ Storage;

▪ Version management; and

▪ Archiving or deletion.


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KNOWLEDGE MANAGEMENT

Precedents / templates are one aspect of knowledge management.

Why have precedents?

• Tools for risk management

• Drive efficiency and productivity

• You do not have to ‘reinvent the wheel’ every time.

Precedents should be properly organised, categorised and named in a central location for all industrial officers and legal officers to access.


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TRAINING AND DEVELOPMENT

Unions should have appropriate arrangements in place including policies to ensure that:

• There is an induction process for new staff;

• All staff are qualified and trained to a level of competence in order to perform their role satisfactorily;

• Individual training and development needs of staff are reviewed regularly.


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CONTINUING PROFESSIONAL DEVELOPMENT

Rule 47 of the Queensland Law Society Administration Rule 2005 deals with obligations of legal practitioners and provides that:

In each CPD year in which a practitioner holds a practising certificate as a solicitor, a legal practitioner must, unless exempted in whole or part, complete ten CPD units.

• CPD Year begins 1 April and ends on 31 March the following year

• Three compulsory CPD core areas including practical legal ethics, practice management and business skills and professional skills.

• Must complete a minimum of one CPD unit for each of the three core CPD areas.

• Required to declare whether you have complied when renewing your practicing certificate.


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SUPERVISION

• Section 56 of the Legal Profession Act 2007 provides that a regulatory authority may impose a condition on a practicing certificate limiting the holder to ‘supervised legal practice’.

• It further provides that ‘it is a condition of a local practicing certificate for a solicitor that the certificate holder must engage in supervised legal practice’ only until certain conditions and time limits have elapsed.

• The period of supervised legal practice are set out in section 8 of the Legal Profession Regulation 2007 (ranges between 18 months to 2 years from first holding a practicing certificate).

• Rule 37 further prescribes that a solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter.


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SUPERVISION – IN PRACTICE

Supervision should include:

▪ Observing and reviewing the solicitor’s professional skills;

▪ Giving feedback and guidance on work;

▪ Identifying and providing any necessary support (including through training and development opportunities);

▪ Managing staff as well as the file.


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SUPERVISION – IN PRACTICE

Duty goes beyond direct supervision, but includes:

• Creating and maintaining appropriate systems and procedures

• Preventing, detecting and correcting misconduct or mistakes by staff

File audits/reviews can be used as part of the supervision of solicitors.

Challenges in relation to effective supervision:

▪ Time pressures, particularly in a fast paced environment;

▪ Lack of resources and training;

▪ Culture; and

▪ Complacency.


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Topic 5:Risk Management and Compliance


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RISK MANAGEMENT

Risk management is about introducing systems and arrangements that seek to limit both the likelihood and impact of mistakes, omissions and oversights.

Why have risk management strategies?

• Help avoid professional indemnity claims (or at least manage them when they arise).

• Standardise the entire process before and after the member’s file is opened.

• Minimise the threat of the risk, limit the effect of a risk, transfer risk to another party and/or manage the risk.


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RISK MANAGEMENT

How to implement risk management strategies:

1. Union must first identify areas of risk and perform an assessment of the risks.

2. Once risks are identified, assessed and understood then appropriate risk management strategies can be put in place.

3. Once risk management strategies have been implemented – they must be communicated to staff to be effective.

4. Ongoing process that needs to be continuously monitored, evaluated and improved.


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RISK MANAGEMENT

Common risk management strategies include:

▪ File audits;

▪ Workload monitoring;

▪ Procedural checklists;

▪ Increased supervision;

▪ Central processes for identifying recording and alerting the need to action time sensitive tasks;

▪ Conflict of interests arrangements.


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COMPLIANCE

All organisations must meet certain compliance requirements, i.e.

• Employment compliance (renewing practicing certificates, engaging in CPD)

• Risk management (professional indemnity insurance):

• All unions should take and hold applicable insurance

• Check carefully what is covered• Who? • What? • Legal v non-legal advice


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CONTACT DETAILS

Giri Sivaraman

Principal, Maurice Blackburn Lawyers

Address: Level 8, 179 North Quay, Brisbane Q 4000

Phone: 07 3016 0345

Email: [email protected]


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Morning Tea

Please enjoy refreshments on us, and we’ll see you back in ten minutes.

ADVOCACY: ESSENTIAL SKILLS FOR APPEARING IN THE COMMISSION OR COURT.

Cate HartiganBarrister

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CONTACT DETAILS

Cate Hartigan

Barrister

Address: Level 31, 239 George Street, Brisbane, Qld 4000

Phone: 07 3210 1583


ETHICS IN ARBITRATION: DEALING WITH YOUR UNION’S OFFICIALS AND OTHER WITNESSES, AS WELL AS OPPOSING WITNESSES.

Bob ReedBarrister

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CONTACT DETAILS

Bob Reed

Barrister

Address: Level 9, 95 North Quay, Brisbane Q 4000

Phone: 07 3236 5844



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This information is prepared for the purposes of the seminar conducted on 4 November 2015 only. The content of this seminar and any

takeaway materials is not legal advice. It is information of a general nature. Attendees requiring legal assistance for their specific

circumstances should not rely on the content of the foregoing but should take appropriate legal advice.

1800 810 812 (business hours)

mauriceblackburn.com.au

Advocacy Essential skills for appearing in the

Court and Commission

Cate HartiganBarrister

Murray Gleeson Chambers

Preparation, preparation, preparation

• Be familiar with the procedural rules• Carefully prepare evidence• Persuasive communication – effective

written and oral advocacy

Effective advocacy

• Tells the story of the matter – why you are there and what you want out of being there

• In order to advocate your matter effectively you must know:– The facts;– The law; and– The relief you seek (and why the other side should not

be entitled to the relief they seek)

Introduction by The Hon Michael Kirby AC CMG delivered on 20 August 2007 to a speech given by The Hon

Michael McHugh at the New South Wales Bar Association• His submissions commenced, as I recall, with a vivid description of the beauty of the Wik

country in the northern part of Queensland. On 1 April 1915, in that country, he said, the Wik people were going about their daily lives as they and their ancestors had done for aeons. The men were getting their bark boats ready to fish because it was a clear day. The women were sitting with the children, teaching them about their traditions. Some older children were running off into the bush. At the very same moment, in the Land Titles Registry in Brisbane, the representatives of the Mitchelton Pastoral Holding were registering a pastoral lease under the Queensland Act. In the old measurements, it laid claim to an area of 535 square miles, approximately 1385 square kilometres6.

• Sofronoff took our minds up to the Holroyd River district. The Wik people continued to live after their traditions. They went about their daily lives, untroubled and unconcerned by the happenings under white man's law in the Land Titles Office of which they had no knowledge. They rarely came into contact with the leaseholders. A vivid picture was painted of two communities, each with legitimacy according to its own perspective and laws. But could their legal claims live so quietly together?

In practice• Provided a descriptive narrative to create a

connection with the subject matter• In doing, so provided a real and very clear picture

of what the tension in the matter was – a few vivid sentences were used at the outset of the submission to describe the quandary the High Court was facing – did the registration of the pastoral lease extinguish native title?

In practice• Opening of the case – key

opportunity to put your case simply and effectively

• Create an opening that is informative but also tells a story

• Which takes us back to ….

Preparation, Preparation, Preparation

• Procedural Rules– Fair Work Commission

Fair Work Act 2009; Fair Work

Regulations 2009 and Fair Work

Commission Rules 2013

Fair Work Act 2009

• Division 3—Conduct of matters before the FWCSubdivision A—Applications to the FWC

• 585 Applications in accordance with procedural rulesAn application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind. Note 1:

Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)). Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

• 586 Correcting and amending applications and documents etc.The FWC may: (a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on

any terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to the FWC.

• 587 Dismissing applications(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:(a) the application is not made in accordance with this Act; or(b) the application is frivolous or vexatious; or(c) the application has no reasonable prospects of success.Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:(a) is frivolous or vexatious; or(b) has no reasonable prospects of success.(3) The FWC may dismiss an application:(a) on its own initiative; or(b) on application.

FWC - Benchbooks

• Anti-bullying benchbook• Enterprise agreements benchbook • General protections benchbook• Unfair dismissals benchbook

http://benchbooks.fwc.gov.au/antibullying/

http://benchbooks.fwc.gov.au/enterpriseAgreements/

http://benchbooks.fwc.gov.au/generalProtections/

http://benchbooks.fwc.gov.au/unfair/

Unfair dismissal benchbook• How to determine if a person is an employee or an independent contractor

• To help determine whether a person is an employee or an independent contractor, there are a series of factors, referred to as ‘indicia’, which generally help decide what a person is.

• There are no rules as to the weighting given to the indicia in the decision making process.23 The indicia are just a guide, with the ultimate question being whether the worker is acting for another or on their own behalf.24

• In considering the criteria, it is necessary to consider the following questions (posed by Bromberg J) in On

Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No. 3):• ‘Simply expressed, the question of whether a person is an independent contractor in relation to the

performance of particular work, may be posed and answered as follows:• Viewed as a “practical matter”:• (i) is the person performing the work an entrepreneur who owns and operates a business; and,• (ii) in performing the work, is that person working in and for that person’s business as a representative of

that business and not of the business receiving the work?• If the answer to that question is yes, in the performance of that particular work, the person is likely to be an

independent contractor. If no, then the person is likely to be an employee.’25

Federal Circuit Court

• Federal Circuit Court of Australia Act

1999 and Federal Circuit Court Rules

2001

Preparing evidence for trial

• In preparing evidence be aware of the rules of evidence

• Collate the facts by reference to the issues in dispute

• Witnesses - evidence orally or by statement/affidavit

• Documents to be relied on


• Collate the facts by reference to the issues in dispute


• Witnesses


• Documents

Written submissions

• Facts of the case• Applicable legal principles• Analysis• Relief you seek

Written submissions

• Facts of the case

Written submissions

• Applicable legal principles– Develop the statement of law into a

proposition which can be applied in the analytical section of the submission

Written submissions

• Analysis– Application of the law to the facts to

justify the relief you seek

Written submissions

• Relief you seek– Ensure the court/commission has the

power to grant the relief you seek

Oral Advocacy

• Evidence in chief

Oral Advocacy

• Cross-examination

Oral Advocacy

• Re-examination

Oral Advocacy

• Closing submissions

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