Law Grad in Pink is a blog written by a law graduate in Adelaide for law graduates everywhere.

Tuesday 31 March 2015

How to make the most of your graduate rotations (what your Buddy won’t tell you)

How to make the most of your graduate rotations (what your Buddy won’t tell you)
Graduate programs last between 12 months and 2 years, and usually consist of two or more rotations in different practice groups. My graduate program was 12 months and consisted of three rotations. I was changing teams every four months. While I was assigned a Buddy for support in each rotation, I found there were some useful things my Buddy forgot to tell me. I have listed these for you.

How to make the most of each rotation:

1.       Get to know everyone in your team. Including the reclusive Special Counsel.
It is likely that HR will assign you to a team and introduce you to your supervising Partner. You may be on your own from that point forward. To quickly settle in, you need to understand how your team operates and who you will get work from. It is important to get to know all members of your team. Do not assume people will come and introduce themselves. Do not assume your Buddy will go around with you introducing you to everyone. Team members may not even be aware that a Graduate is coming to their team. On your first day make sure you meet everyone in person, explain that you are a graduate and that anyone in the team can delegate you work.

Ask your Partner directly who you should do work for. Prioritise your work in order of how senior the instructing solicitor is and how urgent the task is. Ensure you get to know the team nerds, who usually come in the form of Special Counsel. While they are often quiet, introverted, quirky types, they usually have very interesting work, and it would be terrible to miss out on this work because you did not introduce yourself. Hot tip: the longer you delay introducing yourself, the more awkward it gets. Always introduce yourself formally as soon as you meet someone new.

2.       Go to Friday night drinks.
To get to know your team you need to socialise with your team. People will get to know you and trust you sooner if you share information about yourself. Appropriate topics of conversation include what law school you went to, what college of law was like back in the day, sport and happenings in the legal world such as the latest murder trial. Inappropriate topics include personal relationships, sexual orientation, and politics (unless you are 100% sure you are of the same political orientation as the person).

3.       Consider joining the same gym as your colleagues.
Health and fitness is a very easy way to bond with colleagues. I have known people who hold meetings while riding a stationary bike. I became instant work besties with a junior lawyer after we figured out we go to the same Pilates reformer class. Just make sure it looks like you have always been a member and didn’t just join to network.

4.       Ask for work the right way.
There are two extremes:
a.       The graduate who walks around to every single member of their team and asks for work in a demanding/aggressive way until work it given. This generally upsets colleagues and will have you gossiped about, but has the advantage of ensuring colleagues know you are enthusiastic and a hard worker.

b.      The graduate who runs out of work and simply sits at their desk until someone gives them more work. This graduate may be perceived as lazy or disengaged.

The correct approach is a method in between. If colleagues look like they do not want to be interrupted, you could send them an email letting them know you have capacity. It can take time for more senior lawyers to think of work to give to junior lawyers. Once you have let people know, there is no need to continually harass them. You can occupy yourself in the meantime by reading legal updates, tidying Outlook, or assisting the paralegal or secretary with administrative work.

5.       Be best friends with your secretary.
Most graduates are required to do their own administrative work. So you won’t be delegating your typing and photocopying to your secretary. However, having good relations with your secretary is important because often they are the person who runs the team on a daily basis. They know where your Partner is at any given time, and can give you tips on how to deal with Registry and Court staff. They also know addresses for service of subpoenas, who the best process servers are, and where to get the best coffee in the neighbourhood. The team secretary will also be asked to give feedback on how you were to work with. I recommend volunteering to do tasks like delivering briefs to Chambers when the paralegals are away, etc. This shows you are aware of the team’s needs.

6.       Put down ALL your time. Including non-billables.
If it takes you three hours to do the legal research memorandum, put all the time down. It is up to your Partner to decide whether it is reasonable to bill the client this amount or not. It is not your decision. If you don’t put all the time down you are effectively giving the client a discount. At most law firms, only Partners are authorised to give clients discounts. Alternatively, at the end of a piece of work, you could discuss with the lawyer in charge how much would be reasonable to put down.
Put down time for all work, including non-billable work. Your Partner will look at your billing sheet as a record of what you were doing that day. If you did four hours of non-billable work preparing documents for court, your Partner will not know about it unless you put it on your timesheet.

7.       Find out when home time is.
Every team is different. Some start at 7am and finish by 5:30pm. Others start at 10am but won’t go home until 8pm earliest. Finding out when home time is can save you a lot of effort sneaking out or hanging around unnecessarily with no work to do. Your home time will be after all administrative staff have left and after all paralegals have left, and usually will be around the time the junior lawyers leave. Before you leave make sure you ask if there is further work you need to do today. If not, say goodbye to your team and leave.

8.       Ask to go along to court, mediation and client meetings.
If you can fit it into your work schedule, you should try to attend and observe as many court sessions, mediations and meetings as possible. Your team members do not know what your workload is like, so it will be up to you to ask to come along. This shows initiative and enthusiasm.

9.       Be above office gossip.
Some teams love to gossip. They know all about every person at your firm’s personal life and why the Partner in Finance had a falling out with the Property team. If someone starts a gossipy conversation with you, by all means listen, as gossiping can be a bonding exercise, but do not contribute and do not start your own gossip. If it is getting particularly explicit, change the subject. As a graduate you will be moving all around the firm, working in different teams. You need to remain as neutral as possible.

10.   Make your desk your own.
You will be sitting at your desk. A lot. Customise it in a professional manner. Unless you are very lucky, you will be sitting in open plan, which means you will have a few pin up board areas to work with. Try handmade paper in office appropriate colours and a few photos. Appropriate photos include pictures of landscapes and monuments. Inappropriate photos include photos of your family, friends, partner, dog or cat. A small potted plant such as a succulent may also be appropriate. The office environment is too cold for a cactus.
Fresh flowers in a vase may seem like a good idea, but it is also a good way to make enemies with people who suffer from hayfever. If you really need flowers at your desk, opt for fake flowers made from silk.

11.   Take control of College of Law and your admission ceremony. No one else will.
There are a few firms that integrate College of Law into their graduate programs and will probably organise and pay for your admission. Not everyone will get that lucky. For example, the other graduates in my intake were already admitted, so I had to organise everything myself. Remember that “PQE” legal experience only counts after admission, so get admitted as soon as possible.

12.   Stay in contact with the other graduates.
After induction and training graduates are dispersed to different teams. While you may have promised to meet up for lunch once a week, this generally never happens. It is so important to keep in touch with graduates from other teams. They are going through exactly the same difficulties as you and can potentially help you with your problems. You may be going to their team next, in which case they can update you on the team dynamic and the kind of work you will be doing.

13.  Keep in mind at all times you are trying to convince the team that they should offer you a permanent position.
The purpose of a rotation is for you to try out a team and for the team to try you out to see if they want to offer you a permanent position. Equity Partners run law firms and dictate to HR what will happen to you after your graduate year. Even if you do not want to settle in that team, remain vigilant at all times, as you will be reviewed at the end of the rotation, and that review may help you settle in the team you want.

14.   Do not wait until your performance review to bring up issues.
One of the main issues graduates worry about is billable hours. Generally there is ALWAYS work for a graduate lawyer to do. However, much of the work may not be billable. This may make it difficult for you to reach your billable hours target. My billable hours target was 3.5 hours a day which left plenty of time for non-billable work, but at top tier firms it can be upward of 7 hours. Bring the issue up directly with your Partner. Hopefully they see non-billable work as contributing to your team and tell you not to worry about the billable hours.

15.   Be hungry!
Do not let the humdrum of daily life at a law firm get you down. Remember how enthusiastic and hungry to be involved in law you were at the beginning of the graduate year? Remember how many applications you wrote to get this job? Do not leave your motivation at the door. Stay hungry.


Thursday 26 March 2015

Protein ball recipe of the month - lemon and coconut; chocolate and cranberry

Protein ball recipe of the month (March 2015) – lemon and coconut; chocolate and cranberry

Lawyers need snacks, and I am all for healthy snack options. Including homemade protein balls. This week’s protein ball recipes are from my friend Mieka. Mieka is an engineer. But we won’t hold that against her. Especially when she has protein ball recipes to die for. These recipes are all vegan, gluten free, relatively paleo, but are high energy, so I recommend one ball per snack. Guaranteed to ease strong chocolate cravings.

Recipe 1: Lemon and coconut balls




Ingredients:
500g cashews
Lemon zest from 2 lemons
Lemon juice from 1 lemon
1/3 cup coconut oil
1 cup desiccated coconut
Small amount sweeteners (if required) – rice malt syrup (for vegans), honey, or maple syrup

Method:
Blend all ingredients on high speed until desired texture is created. The mixture should be soft enough to form a ball. Roll tablespoonfuls of mixture into balls with your hand. Put in a container and store in the fridge or freezer.

Recipe 2: Chocolate cranberry crunch



Ingredients:
500g almonds
Cranberries (about the same volume as almonds, but could use less or more to control sweetness)
¾ cup dates (dried dates, could also use fresh dates)
¼ cup coconut oil
Natural vanilla
1/3 cup raw cocoa (can use normal unsweetened cocoa too)

Method:
Blend all ingredients on high speed until desired texture is created. The mixture should be soft enough to form a ball. Roll tablespoonfuls of mixture into balls with your hand. Put in a container and store in the fridge or freezer.

Helpful notes:
1.       Quantities: these quantities are all estimates. If the mixture does not form a ball add more wet ingredients such as coconut butter or a few drops of water. If the mixture is too wet or sticky to form balls, add more dry ingredients such as nuts or dried coconut.
2.       Storage: Store your protein balls in the fridge or freezer. The lemon and coconut balls are particularly good straight from the freezer. There is usually plenty of space in work freezers so perfect storage location.
3.       Texture: Smooth v rough.  Both protein balls can be made very smooth (see picture of lemon and coconut balls) or rough (see picture of chocolate and cranberry balls). You can make your protein balls smooth by blending for longer. I personally find protein balls involving cashew nuts are better smooth, but the chocolate and cranberry recipe is delicious left chunky.  
4.       Personalisation: If you love lemon, add more lemon zest. Make the recipes your own. Use dried blueberries instead of cranberries; use lime instead of lemon; use macadamias instead of cashews. Live a little.



Tuesday 24 March 2015

Court room etiquette: Why you should never leave the bar table empty

Ensuring the bar table is never left empty is what Sir Maurice Byers referred to as one of the “rituals and traditions of common law”. It is an unwritten rule of professional courtesy and respect for the court and the rule of law. Unfortunately, I have seen the bar table left empty by junior lawyers many times which means either:
   1.       They are being intentionally disrespectful; or
   2.     Do not know about the rule.
I like to think it is (2). Lawyers just do not discuss court room etiquette enough, so it is very easy for a junior lawyer to miss out learning about the rule.

Getting acquainted with the bar table:
The bar table is a large, long table in the centre of the court room that faces the judge. The bar table generally has lecterns, but it depends on which court you are in. The bar table should be treated with utmost respect. While paper, folders you are using and your notes can be placed on the bar table, handbags and drink bottles are a definite no. Items not appropriate for the bar table should be placed on the ground or ideally not taken to court at all. Placing mobile phones on the bar table is downright rude, though I have noticed quite a few lawyers doing this. Keep your mobile in your pocket on silent and if you need to take a call leave the court room before answering.

Who sits at the bar table?
Every party should be represented by someone sitting at the bar table. If the party is unrepresented, the individual should sit at the bar table. If the unrepresented party sits in the wrong place (ie at the back of the court room), the judge will direct the party to sit at the bar table. If the party is represented the lawyer should sit at the bar table. If barristers are involved, the barristers will sit at the bar table with the lawyer behind or nearby to assist if necessary.

The rule in a nutshell:
The bar table should never be left unoccupied. Remain at the bar table until the judge excuses you, the next matter is called or the court adjourns.

How to ensure the bar table is never left empty:
  1. When the judge comes onto the bench, the bar table should be already occupied.
  2. The bar table should be occupied at all times. In list matters such as for pre-trial reviews in the Local Court, ensure all available seats at the bar table are taken at all times. This will enable the lawyers of the finishing matter to leave immediately as you will be there at the bar table already waiting to mention your matter. On list matters, it is also wasting everyone’s time if the bar table is left empty. Usually there will be people lining up to get a place at the bar table.
  3. If you find your matter has concluded and no one else is at the bar table:
a.       Wait at the bar table until another party joins you; or
b.      Wait until the judge or registrar excuses you.
  4. The bar table must be occupied when the judge leaves the bench. This means if you are the last matter on the list and you are at the bar table or the last matter mentioned, you must stand at the bar table when the judge exits and remain at the bar table until the judge has exited.   


Sunday 22 March 2015

When should I apply for clerkships and graduate positions?

Short answer: In NSW, apply for graduate positions in March/April in your final year of study. Apply for clerkships in June/July of your penultimate year.

Long answer: There are a variety of positions available to apply for year round, particularly if you are open to working in other states. I have listed a few below, but this is just a small amount of what is actually on offer. If you do your own investigating, you will be surprised how many opportunities there are.  

Month
Positions likely to open
January
Victoria County Court – Associate positions
Graduate and junior lawyer position

NSW ODPP – Legal Development Program
Graduate position

SA Crown Solicitors – Paralegal Pool
Paralegal position

February
Look out for graduate positions for immediate start. At this time of the year, some graduates may pull out of programs, leaving positions open. Firms will generally only advertise on their own website, so look at Career pages of the firms you are interested in.

March
Legal Aid Victoria New Lawyers Program
Admitted lawyers with up to two years post admission experience

Graduate programs at Sydney mid-tier firms commencing the following year including:
-Landers & Rogers
-Piper Alderman
-TressCox Lawyers
Some mid-tier firms use CV Mail, which simplifies the process of applying for several firms. CV Mail also lists firms that are accepting applications.

Australian Government Solicitors Graduate Program
Graduate position

Australian Competition and Consumer Commission
Graduate position

Attorney General’s Department Graduate Program
Graduate position
April

May

June
Summer clerkship programs for most firms in Sydney
Summer Clerk position

WA ODPP Articled Clerk program
Graduate position
July
Office of Public Prosecutions Victoria – Legal Traineeship Program
Graduate position

August
Graduate program at Mills Oakley Lawyers (Sydney)

Summer clerkship positions in Victoria open around this time. The Victorian system is different to NSW in that law students will generally do two summer clerkships at different firms. The clerkships generally run for 4 weeks which is much shorter than the clerkship programs in NSW.
September
Summer Clerkships at Mills Oakley Lawyers (Sydney)
October
NSW Police Accelerated Prosecutors Recruitment Program
Graduates and Lawyers

Administrative Appeals Tribunal Melbourne recruitment of Associates/Legal Administrative Assistants
Graduate position
November
SA Crown Solicitors Graduate Pool
Graduate position

Aboriginal Legal Services NSW
Junior Lawyer position (advertised as needs arise)
December
NSW Office of Environment and Heritage – legal graduate program
Graduate position

Fair Work Building & Construction Graduate Program
Graduate position

Commonwealth ODPP Graduate Program
Graduate position

Tips:

  1. If you are looking to work at commercial law firms, check their careers page often for openings. Many law firms do not use recruitment agencies or advertise externally, so the only way you can find these jobs is to frequently visit the firm’s careers pages.
  2. You would be surprised how many jobs are advertised on Linked In. Even some entry level legal jobs. Make sure your profile strength is at “All-Star” level. Your Linked In profile is more important than you think. Many online job applications now make you link your profile directly to your application. Your resume will be cross referenced with your Linked In page, so make sure they are consistent.
  3. Beyond Law always has a few current jobs listed, and they are targeted at graduates and junior level lawyers, so you will be qualified to apply for most of them. See https://beyondlaw.com.au/job-hub.
  4. For careers in social justice for students and new lawyers you cannot go past Social Justice Opportunities. See http://www.sjopps.net.au/sjopps/home.asp#latest.

Monday 16 March 2015

The four most essential legal concepts for law graduates

My experience as a law graduate so far has taught me that it is very important to know certain key legal concepts because they come up repeatedly and colleagues will expect you to be across them (even if they aren’t – life can be hypocritical). I’m not going to go into serious detail because this is a blog not a textbook, but will set out the basics.

Disclaimer: I have been working in property law, family law, commercial litigation and industrial relations, which are quite litigious areas of law. Your personal “essential legal concept list” may vary. Please share in the comments section if this is the case.

Essential concept 1: legal professional privilege
My Evidence course at law school really glossed over sections 117 to 126 of the Evidence Act 1995 (NSW). These sections are very important when working in any potentially litigious area of the law. At work I write at least one legal research memorandum on legal professional privilege a month. Legal professional privilege is taught in the admission to practice courses, so if you are yet to do College of Law, make sure you pay attention for the legal professional privilege component.

What was known as legal professional privilege at common law is split into “legal advice privilege” (s118) and “litigation privilege” (s119) in the Evidence Act.

Legal advice privilege is designed to protect legal advice (obviously), and will prevent evidence being adduced under s118 where:
EITHER
  1. A confidential communication has been made between the client and lawyer or between lawyers acting for the client; or
  2. A confidential document has been prepared;
AND
The confidential communication or confidential document was made for the dominant purpose of the lawyer providing legal advice to the client.

The “purpose” is the purpose that at the time led to the creation of the communication or the preparation of the document (Carnell v Mann (1998) 159 ALR 647).

The champion of evidence law Stephen Odgers has stated the question to be as follows: “would the communication have been made or the document prepared even if the suggested dominant purpose had not existed? If the answer is ‘yes’, the test is not satisfied. If the answer is ‘no’, the test will be satisfied, notwithstanding that some ancillary use or purpose was contemplated at the time”.

Litigation privilege will exist under s119 where:
EITHER
  1. A confidential communication has been made between the client and lawyer or between a lawyer acting for the client and another person; or
  2. A confidential document has been prepared;
AND
The confidential communication or confidential document was made for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceedings where the client is/may be/might have been/was party to the proceedings.

Examples where s119 privilege was held to exist include:
  • A record of interview between a solicitor for the coal company and an employee about a mine accident (Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mine Regulations (1997) 42 NSWLR 351 at 389);
  • Communications between the party and an expert witness called by that party (Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 156 ALR 364 at 365);
  • Documents recording communications between prosecution lawyers and prosecution witnesses for the dominant purpose of pending legal proceedings against the accused (R v Petroulias (No 22) (2007) 176 A Crim R 309 per Johnson J); and
  • A document prepared as an originating process of legal proceedings or pleadings (as distinct from a draft witness statement or affidavit) is not privileged because it was not made for the dominant purpose of providing legal services: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2004] NSWSC 40.  
There is significant case law on the “dominant purpose test” for both s118 and s119, which I won’t go into any more depth here.

It is also useful to be across the ways in which privilege can be lost:
  1. Where the document is used to revive a witness’s memory (s122(6));
  2. In criminal proceedings where the defendant is adducing the evidence, unless the evidence is derived from an associated defendant (s123);
  3. Joint clients retaining the same solicitor in civil proceedings (s124);
  4. Where the document was prepared in furtherance of fraud or abuse of statutory power (s125); and
  5. Where there is a related communication already in evidence and it is reasonably necessary for the otherwise privileged document/correspondence to be in evidence so the first communication can be understood (s126).

Essential concept 2: Principles of contract interpretation
Note: The terms “contract interpretation” and “contract construction” are used interchangeably.

The most important case outlining the classic rule is: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24
The rule: Start with the text and then look at the rest of the contract. If, and only if, there is ambiguity, you can look at extrinsic evidence to aid interpretation. Ambiguity arises where the words are capable of more than one meaning. Extrinsic material is not admissible to contradict the text of a contract where the words have a clear meaning.

It is a two step process:
Step 1: What is the meaning of the words looking at the text itself?
Step 2: If there is ambiguity extrinsic evidence can be used as an aid.
The process stops at Step 1 if there is no ambiguity.

There are some NSW cases suggesting that it is permissible to look at the surrounding circumstances at Step 1. These cases are wrong. In Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 the High Court reprimanded these cases and clarified that Codelfa remains the authority on interpreting contracts in Australia. That is, extrinsic evidence is only admissible if the meaning of the clause in the contract is ambiguous. If the meaning is clear, you do not go near the factual matrix.

What does extrinsic evidence/the factual matrix include?
It is useful to start with what extrinsic evidence does not include. Extrinsic evidence never includes:
  1. The subjective intention of parties on entering the contract. The subjective intention of parties can be used to for rectification matters, to establish that a contract exists, and for establishing what the terms of an oral contact may be. Subjective intention cannot be used for interpretation purposes (Life Insurance Co of Australia v Phillips (1925) 36 CLR 60).
  2. Subsequent conduct of the parties. The conduct of parties after the contract has been entered into can only be used to establish there is a contract in existence and what the terms of the contract are. Subsequent conduct cannot be used for interpretation to determine what the terms actually mean (Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407).

Extrinsic evidence includes analysing the factual matrix, considering the parties at the time the contract was formed from the perspective of a “reasonable person”. The analysis is objective, ie:
“What were the objective surrounding circumstances at the time of entering into the contract?”

In practice, it does not take much to manufacture ambiguity, but it is a step that must be taken before the factual matrix can be considered.

For extra nerd points: revise implications in fact and law, what you may have learned in Torts & Contracts II in the cases of BP Refineries (formal contracts) and  Byrne v Australian Airlines (informal contracts). Remember it is very difficult to have a new term implied by law, as implied terms in law wapply to all contracts of that category.

Essential concept 3: Principles of statutory interpretation
Statutory interpretation is so important I have written a separate blog post on this topic. In the modern legal environment, most law is contained in statute. A lawyer who does not understand the principles of statutory interpretation will struggle. It is hard to believe Interpretation is not a compulsory subject at law school. 

Essential concept 4: Principles of contract formation
I thought that working in commercial law, all contracts would be formal, written contracts. This is not the case. I have had to deal with many entirely or partly oral contracts. Which meant revising principles of contract formation I learnt five years ago:

  1. Agreement
Otherwise known as “offer” and “acceptance”.
Offers:
Remember the difference between an offer and an “invitation to deal”. Once an offer is terminated it can no longer be accepted. An offer can be terminated in a number of ways including revocation, rejection, death of the offeror, and the failure to perform a condition. Understanding rejection is particularly important. A counter offer is a form of rejection. There is a fine line between counter offers and requests for further information (Hyde v Wrench [1840] EWHC Ch J90).
Acceptance:
Can be oral, written or indicated by conduct. The acceptance must be received by the offeror.

  1. Consideration
Usually not an issue in commercial contracts.

  1. Intention to create legal relations
This intention is usually evidenced in commercial contracts by the passing of consideration between parties (Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd [1989] 2 NSWLR 309).

  1. Capacity to contract
The relevant time is the time of contract formation. There are two elements the party seeking to withdraw from the contract must establish:
  1. They are suffering from a disability such that they were unable to understand the general nature of the contract (Gibbons v Wright (1954) 91 CLR 423);
  2. The other party was or ought to have been aware of the disability.

Not all oral contracts will be valid. Statute dictates that certain contracts must be in writing, including contracts for the sale of land s54A(1) Conveyancing Act 1919 (NSW).


Note: when establishing that an oral contract exists, all surrounding circumstances can be used, including the parties subjective intentions in entering into the contract. 

Thursday 12 March 2015

How to correctly announce your appearance

Announcing your appearance in a clear and confident manner is very important to settle your nerves and ensure you do not get roasted by a Registrar who likes to “induct” young lawyers. It also serves the purpose of providing the monitor with a name to record on the court transcript log.

I was quite confidence at announcing my appearance in court until I realised that almost every practitioner announces their appearance differently. What is the correct way? And are there any rules to guide you?

I was taught to announce my appearance in the following manner:

“May it please the court, Holmwood*, spelled h-o-l-m-w-o-o-d~, for the Defendant#”.

*State your last name here. You may also have to state your first initial if there is more than one admitted solicitor in NSW with your last name.
~Unless your last name has an obvious spelling, like “Smith”, you will have to spell it out to the Judge or Registrar. Just do it. The amount of times I see people not spelling their name and then having to be asked by the Registrar to spell it out is embarrassing. Not only are you wasting the Judge/Registrar’s time if you have to be asked to spell your name, you are wasting the time of everyone in the list behind you.
The only time you don’t have to announce your appearance or spell out your last name is if the Judge does it for you, as in “oh yes, I see we have Smith for the Plaintiff, and who is that appearing for the Defendant?”. This only happens for a select few QCs and SCs who happen to be well known to the Judge.
#State the party you are representing here – ie Plaintiff, Applicant, Defendant, First Defendant.

I also like the even more formal examples provided by Dean Morzone QC in a CPD seminar:
·      A barrister might say: “May it please the court, my name is [surname] initials [say your initials], of counsel, I appear for the [party] instructed by [instructing solicitor] solicitors.”
·      A solicitor might say: “May it please the court, my name is [surname] initials [say your initials], solicitor of [practice name] and I appear for the [party].”

Appearances I have heard in the Local Court:
·         “Smith for the Defendant”
·         “Good morning, Smith for the Defendant”
·         “Smith, your Honour”
I hope these made you cringe as much as I did when I heard them. Just because you are in the Local Court Small Claims Division does not mean you can avoid talking in sentences or speak to the Judge/Registrar as though you are on the street – “good morning” is not a way to announce your appearance. The Local Court represents the rule of law and the legal system just as much as the High Court, your standards should not vary depending on the hierarchy of the court.

Are there rules that apply?
After a thorough search of the Uniform Civil Procedure Rules (and myriad other statutes and regulation), I could not find any rules covering the announcement of an appearance at court. The UCP Rules deal with filing an Appearance, the consequences of failing to file an Appearance, and how to withdraw an Appearance, but are silent on the method of announcing your appearance at court.

The actual announcement of your appearance before the court is a formality not provided for in the Rules.  However, I would argue that the tradition of announcing your appearance has become a custom, and that the formal/traditional method of announcing your appearance should apply at all times.

If you are acting as an agent...
You need to let the court know when announcing your appearance you are acting as agent. This is important, as if you need to stand you matter in the list to receive further instructions from the principal, the court will already be alert to this possibility as you earlier informed them you were acting as agent.

A suggested appearance would be:
“May it please the court, Holmwood, spelled h-o-l-m-w-o-o-d, as agent for Law Firm X who are acting for the Defendant”.

I have heard some lawyers use this formulation:
“May it please the court, Holmwood, spelled h-o-l-m-w-o-o-d, as agent for the Defendant”
Technically this is incorrect. The agency relationship is between you and the law firm you are acting as agent for. There is no direct agency relationship between you and the Defendant.


A final tip: Write your appearance word for word at the top of your notes. This sounds ridiculous, but you will be thankful you took this step in the event you stand at the bar table to mention your matter and your mind goes blank. By the time you have read your appearance you will probably be feeling more comfortable and able to continue.  

Tuesday 10 March 2015

Finished your GDLP? Time to get admitted!!!! But first…the paperwork:

Admission is managed by the Legal Profession Admission Board (LPAB). Admission Ceremonies are generally held bi-monthly on a Friday (ie a Friday in March, a Friday in April, a Friday in June). The closing date for applications is about four weeks from the ceremony date. Get your application in as early as possible, as the number of positions in each ceremony is capped, and ceremonies often fill before the closing date. Missing out could mean you have to wait another two months to be admitted, and delay any related pay rise you are waiting for.

You will have to complete Form 10 which is the form for those who have not been admitted anywhere else before. This is available on the LPAB website. You will need to attach the following original documents to the form:
  1. Two character references from persons who:
    1. Are at least 30 years of age;
    2. Have known you for at least three years; and
    3. Are not related to you by blood or marriage (hot tip: this is A LOT of work for your referee, so choose wisely and reward with home baked cookies or other similar gift);
  2. Transcript of your University academic record; and
  3. Certificate from your PLT provider showing completion of your course. 
The cost of Admission is currently $500. Try and get your law firm to pay for this. Mine wouldn’t, but it is worth asking!

Lodging your application
Applications can be lodged by post or in person. I recommend you attend the LPAB Office at Level 4, 37 Bligh St in person to lodge your documents. Lodging your application in person has the following advantages:
  • You can pay on your credit card, saving time preparing a cheque;
  • Your documents will be checked on the spot and if your documentation is not accepted, you will be able to fix it quickly. If you send in your paperwork by mail, it can take weeks for the LPAB Office to get back to you about erroneous paperwork, which may impact your ability to fix the documents in time for the ceremony cut off date; and
  • You will be told which admission ceremony you will likely be in (subject to receipt of the official email).

When will my place at the Admission Ceremony be confirmed?
The LPAB approves applications at a Board Meeting one or two weeks before the Ceremony. After the Board has met, you will receive the official confirmation for your Admission Ceremony.

Who can “move” me?
You can have a local NSW lawyer or an interstate lawyer move you. The options are:
  1. Local lawyer in NSW who is:
    1. Currently on the NSW roll; and
    2. No requirement for NSW lawyer to hold a current practising certificate.
  2. Interstate practitioner who is:
    1. Currently on the roll of a non-NSW state/territory; and
    2. Must hold a current practising certificate and present the certificate to Ceremony staff prior to the admission ceremony.
A member of the judiciary cannot move you, but a retired member of the judiciary can. If you have a Barrister “moving” you, be sure to remind them that they need to be robed for the ceremony.  

What if I can’t find someone to “move me”? Or what if my “mover” cannot make it at the last minute?
Both College of Law and ANU provide representatives at ceremonies to admit students from their PLT courses. Usually you have to call ahead of time to arrange a representative to be there, but if you find yourself without a “mover” on the day, a representative already attending may be able to “move” you. If you know you will have an issue finding a practitioner ahead of time, call LPAB and they will try and assist you to find a “mover”.

What to expect on your Admission Day:
What LPAB says:
Normally admission ceremonies in Sydney are held in the Banco Court, Level 13, of the Law Courts Building at 184 Phillip Street, Sydney. There are entrances to the building on Phillip Street and Macquarie Streets. Please check our Home Page for any announcements regarding venue changes.

Depending on the number of applications received, we may hold between one to seven ceremonies on the day. If your application is approved, you will then be notified in writing of the time of your ceremony. As a matter of policy, this information cannot be given over the phone, it can only be confirmed in the letter sent after the Board meeting. Usually, the likely times for the ceremonies are at 90 minute intervals from 9.15am. Applicants are placed alphabetically according to their surnames (applicants cannot choose which time their admission will be). It will take approximately one and a half hours from the time of arrival for the ceremony to the time the ceremony concludes and you have completed all necessary paperwork.

It is important that you arrive at the Law Courts building at least 40 minutes prior to the ceremony. The Court room will open approximately 30 minutes before the ceremony start time to seat applicants, movers, guests and provide instructions for the conduct of the admission ceremony.
Please note that if you arrive late, after the ceremony has commenced, it is possible you may not be admitted.”

What actually happens:
You will have to wait for me to report on my own admission ceremony for that J




Monday 9 March 2015

Statutory interpretation 101


Statutory interpretation 101 – how to ace statutory interpretation when you never studied the subject at law school

In the modern world most law is contained in statute. If the area of law is not currently statutory it likely soon will be. At work as a graduate I would use the principles I learned in this subject on a daily basis. It is unbelievable that Interpretation is not a compulsory subject at law school.

For those of you who were not able to study Interpretation, my heart goes out to you. But it is not too late. You can start by using this article on statutory interpretation basics:

THE PRINCIPLES
You need to know that there was an old approach to statutory interpretation called the “Golden Rule”. The “Golden Rule” held that the meaning of statute would be the literal meaning unless this produced an absurd result. Only if an absurd result was produced could the broader context and purpose be considered. Now you can forget about the old approach, because there is a new approach.

The modern, purposive approach to statutory interpretation was outlined in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. The reason I have bolded this case is because it stands for many of the modern propositions of statutory interpretation and if you are being put under pressure by a judge, you can just sight it. It is the Tasmanian Dams of interpretation.
So what is the Project Blue Sky purposive approach?
1.    Absurdity is not required before looking at context and purpose.
2.    The text must always be considered in light of the purpose (this repeats (1) somewhat but is a very important point).
3.    Purpose involves finding legislative intention. The legislative intention can be found by looking at the words parliament have used in the Act. See section below on “Purpose” for more details.

Note that the purposive approach cannot be used to override the meaning of the text. The purposive meaning of the text must still be within the frame of interpretation or the possible meaning of the texts.

There will be a literal meaning of the text and a legal meaning of the text. In my experience it is rare they are the same. This is because the modern approach requires an examination of the context of the words and purpose of the statute or section.

A simple way to remember how to approach statutory interpretation is the motherhood statement “text, context, purpose”. No I did not invent this memory aid. Justice Hayne and Justice Kirby have both described the modern approach to statutory interpretation in this manner. The key is to conduct the examination in this order. The mantra should perhaps be extended to “text, context, purpose, text”, as the inquiry must both start and end with the text.

TEXT
The process of interpretation starts with the text itself. This proposition reflects an underlying principle that the ordinary person should be able to know what the law is by reading the statutory text. There are copious references in the case law to the need to give effect to the “clear words” of the statute.
The literal meaning often turns out not to be the legal meaning.

Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 490
The literal meaning and legal meaning may not correspond, but one should first start with working out the literal meaning of the text.

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J
If the literal/grammatical meaning does not conform to the legislative purpose as ascertained from the statute as a whole – court can give effect to that purpose by addition to, omission from or clarification of the particular provisions. If the text is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on the meaning, the grammatical meaning “is the ordinary meaning” to be applied. Court cannot depart from the ordinary meaning of a legislative provision simply because that meaning produces anomalies.

Certain Latin principles may/may not assist:
  • Nosti tora socius - a thing is known by its associates
    • Sub rule: General words following a list of specific instances of a particular class are to be construed as operating within that class, not at large
  • Espressio unius: to specifically mention one thing is to exclude another
Isaacs J: principle of logic that where framers of the document expressed intentions as to a given subject it can not be said they have left their intentions elsewhere Connor
  • Expressio facet cecera tecet: that which is expressed puts an end to that unspoken: implication cannot be made on a topic in respect of which express provision has been made.
Rule in Anthony Horden (1932) 47 CLR 1: proposition is that when legislation expressly confers power by a particular provision that prescribes way the power is exercised it excludes expression of general proposition in same instrument otherwise relied upon.

How useful are dictionaries?
Not very useful. Though they are often used to determine the range of meanings, it does not mean you are bound by them. If you are really stuck, use the dictionary definitions to get your brain moving.
Fact: courts generally do not find dictionary definitions impressive.
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 505 (“church”)
Meaning of the word “church” in a very old development plan.

Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560D per Mahoney J:
"The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt a much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply."

Start with the ordinary and natural meaning of the word
Question: does this mean the contemporary meaning or the meaning when the statute was enacted? Ie should you use the contemporary meaning or the historical meaning of the word?
Answer: If society changes such that the natural and ordinary meaning of the word changes, then the contemporary meaning rather than the historical meaning should be applied.

CONTEXT
In a nutshell:
Read the text in context. Most of the debate is about how wide the context is. For example, would the context be as wide as looking at parliamentary debates leading to the passing of the legislation?

For the severely underaquanted, there are Acts that exist to assist with interpretation.
For Commonwealth statutes see the Acts Interpretation Act 1901 (Cth).
For New South Wales statutes see the Interpretation Act 1987 (NSW).
While the provisions are not identical, they are similar enough that I will just deal with the NSW sections.

Section 34 of the Interpretation Act 1987 (NSW) outlines when and how extrinsic material can be used in the interpretation process to assist with context:

Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,
(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,
(d) any treaty or other international agreement that is referred to in the Act,
(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,
(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and
(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.
(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Note:
  1. Extrinsic aids may be taken into account even where the provision is ‘clear on its face’.
  2. BUT if the provision is clear on its face, extrinsic material may only be used to confirm the ordinary meaning the interpretation that the court without reference to those materials, would place upon the provision.
  3. For a reference to extrinsic materials to have the potential to change an interpretation of legislation the court would not otherwise have arrived at, must meet a condition:
-ambiguous
-obscure
-or taking account of context and underlying purpose leads to an ordinary meaning that is manifestly absurd or unreasonable.
  1. Australian courts have traditionally been reluctant to rely too heavily on extrinsic material. Where extrinsic material has been examined or relied upon, it has usually been legislative history including second reading speeches where there has been a contest based on the extent to which the law has changed.
  2. High Court: has predominantly used parliamentary debates, particularly reports of the second reading speech of the minister who introduced the bill and EM.
  3. Federal Court: has had frequent reference to the second reading speeches and EM.

PURPOSE
S33 of the Interpretation Act 1987 (NSW) requires regard to be had to the purpose or object of the Act. An interpretation promoting the purpose of the Act is to be preferred to a construction that would not promote the purpose of the Act. 

Section 33 (and s15AA Cth Act) reflect the Project Bluesky position of the purposive approach to interpretation.

Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J
Before s15AA was enacted, it was generally accepted the common law purposive approach to interpretation should only be resorted to if there was an ambiguity or doubt as to the meaning.
Section15AA requires the purpose to be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act is clear.
But
S33/s15AA does not permit the court to ignore the actual words of a statute
R v L (1994) 49 FCR 534 at 538
Only meaningful where two constructions otherwise open – not a warrant for reading the legislation as redrafted nearer to the assumed desire of the legislature.
“The requirement that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature

Sometimes the underlying purpose or object of a provision may not be discoverable
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ:
“The choice directed by s35(a) of the Interpretation of Legislation Act is not as to the construction which “will best achieve” the object of the Act.
Rather it is a limited choice between ‘a construction that would promote the purpose or object of the Act’ and one ‘that would not promote that purpose or object’

Note the difference between:
1. Legislative purpose: statutory interpretation is concerned with the purpose the text advances.
2. Subjective purpose: what a Minister states the purpose to be in a second reading speech, explanatory memorandum, policy note, etc.
Statutory interpretation is concerned with legislative purpose not the subjective purpose. Legislative purpose involves looking at what the text does to advance the purpose to be found in the instrument as a whole.

Legislative intention is ascertained by interpreting the statute, not by quoting a Second Reading Speech or explanatory memorandum. All these sources can be considered, but the search must begin and eventually end with the words of the Act concerned. You will see in most judgments, although sources like EMs and Second Reading speeches were considered, the judge would ultimately place little emphasis on them.

Kirby J talks about the danger of “parliamentary intention” in:
Yarmirr v Northern Territory (2001) 208 CLR 1 at [262]
Danger of talking of parliamentary “intention” is that use of this fiction slips very easily into a search for the intention of the Minister, the Government, or the Members of Parliament who spoke on the Bill that became the law in question. Would be preferable for courts to drop altogether the fiction of parliamentary intention.
The more objective word “purpose” reminds the searcher that the object of the inquiry is something other than the subjective intentions (if any) of the legislators.
The court seeks to ascertain the purpose of the law, ultimately derived objectively from the language in which the law is expressed.

Elkin on ‘Legislative intention’ – two types:
  1. Narrow purpose – the work the section has to do;
  2. Broad purpose –what the section is intended to achieve.

Where the object is stated in the Act:
Is this statement of purpose sufficient or do you have to look at the larger legislative intention?
What if the purpose in the Object section and the larger legislative purpose conflicts? The purpose is meant to be derived from a consideration of the way the Act operates as a whole (Hayne J).
Just because there is an Object section does not mean you have found the legislative intention.

Russo v Aiello (2003) 215 CLR 643 at 645
Where the Objects section purpose and a more specific purpose derived from an examination of other provisions in the Act conflict, the more specific purpose is to prevail.

PARTS OF STATUTE
Preamble:
Wacando v The Commonwealth (1981) 141 CLR 1 per Mason J:
Where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble.
Recourse to preamble can throw light on statutory purpose but cannot cut down clear enacting words that follow the preamble.
If preamble is narrow does not mean rest of Act needs to be narrow.

Earlier provisions contradicting later provisions:
Anthony Horden & Sons Ltd
Where you have earlier provision then contradicted by a subsequent provision or general provision subsequently cut down by a special provision then the special provision or the subsequent provision that controls the meaning of the statute in that context.
Start general and add to greater specificity-general statement at beginning must give way to narrower statement at the end - respect convention legislation towards the end becomes narrower and narrower.

Headings, marginal notes, footnotes and endnotes, examples:
Yorta Yorta Peoples v Victoria [2002] HCA
Headings do not necessarily control the substantive meaning of the terms


Hopefully you found my article on Statutory Interpretation useful. If there is a major step you believed I have missed or a key case I have not mentioned, please comment below.