Practitioner Alert – three matters:  Magistrates Court tiered fees; Amendment Magistrates Court Rules; Guidelines for Law Clerks and PLT/GDLP Students appearing in court 

 

Tiered filing fees in the Magistrates – effective 1 May 2018

 

The Magistrates Court (Fees) (Tiered Fees in Civil Jurisdiction) Variation Regulations 2018 commenced 1 May 2018. The Regulations introduce tiered filing fees in the Magistrates Court. 

 

The amended regulations (gazetted on 23 January 2018 but were only able to come into effect after the commencement of the Statutes Amendment (Court Fees) Bill 2017 on 5 March 2018.

 

The then Attorney-General, the Honourable John Rau MP advised on 25 August 2017 the introduction of setting down fees was expected to operate as an incentive for parties to exhaust attempts to resolve matters before listing them for trial and help to reduce congestion in civil trial lists. 

 

The Society opposed the introduction of tiered fees. Read our submission of 1 September 2017.

 

 

Magistrates Court Rules 1992 – Amendment 66 – effective 30 April 2018

 

Amendment No 66 to the Magistrates Court Rules 1992 was re-gazetted and came into effect on 30 April 2018, (correcting the date they were to take effect). 

 

The Rules apply to and govern all actions commenced in the criminal division of the Court.

 

 

Guidelines for Law Clerks and Practical Legal Training/GDLP students appearing in Court

 

The Society has adopted Guidelines for Law Clerks and Practical Legal Training/GDLP students appearing in Court.

 

The Guidelines seek to bring to the attention of legal practitioners the factors they must consider and abide by when a Law Clerk or Practical Legal Training (PLT)/GDLP student seeks the approval of a court to appear in relation to a matter involving a client of the practitioner.  Please note however that judicial officers do of course have an over-riding discretion as to grant of leave to unqualified persons to appear before them. 

 

Introduction

 

Under s 21(3)(g) of the Legal Practitioners Act 1981 (“the Act”) a Judicial Officer may grant leave to appear to an unauthorised person if the relevant Court Rules allow for this to occur.

 

Members of the judiciary have an over-riding discretion to grant leave to unqualified persons to appear before them.

 

These Guidelines set out the matters that a court includes in its consideration of whether to grant a non-admitted person, such as a student or law clerk, a right to appear.

 

Legal practitioners must consider and abide by these Guidelines when a Law Clerk or Practical Legal Training (PLT)/GDLP student seeks the approval of a court to appear in relation to a matter involving a client of the practitioner.

 

Regardless of whether an unqualified person is entitled to appear in court by virtue of Section 21(3)(g) of the Legal Practitioners Act 1981 or a grant of leave by the Judicial Officer, any loss caused by a negligent act of the PLT student in the course of that appearance will not be covered by Professional Indemnity Insurance. This means that the informed consent of the client should be obtained prior to the student appearing; students should only seek leave to appear in relation to the lowest risk tasks such as non-contentious applications for adjournments; and a practitioner holding a practising certificate be present in court during the student’s appearance.

 

Background

 

1.         Section 21(1) of the Legal Practitioners Act 1981 makes it an offence for a person not holding a Practising Certificate to “practise the profession of the law”, which includes representing someone in court whether or not a fee or reward is applicable.

 

2.         Section 21(3) contains a list of contexts in which people not holding Practising Certificates are permitted to do things that would normally be the preserve of qualified lawyers. Section 21(3)(g) states that an unauthorised person can represent another person in court as long as the rules of the court permit it.

 

3.         Although there does not appear to be a specific court rule that deals with appearances by unqualified persons it has always been considered that the court’s own discretion to permit whoever it likes to appear before it constitutes a rule of the court for this purpose.

 

4.         As a result, it is not a breach of section 21(1) for an unqualified person to appear for another person in court if the court has granted leave for them to do so.

 

5.         The question is what matters need to be taking into account by

 

5.1      practitioners who are instructing unqualified persons to appear;

 

5.2      unqualified persons seeking leave to appear; and

 

5.3      the court when considering whether leave to appear should be granted.

 

6          The representation and protection of the client is the primary consideration

 

Professional Indemnity Insurance

 

7      Clause 6 of the SA Professional Indemnity Scheme General Scheme Provisions 2017 states as follows

 

6.            APPLICATION

 

6.1          This Scheme applies to

(a)    Practitioners practising on their own account, whether alone or in partnership or as a member, director or Employee of a corporation;

(b)   Practitioners employed by other practitioners or by an incorporated legal practice or by a Community Legal Centre;

(c)     Former Practitioners.

 

6.2         Subject to clause 6.3 below, this Scheme also applies to any person who voluntarily requests indemnity under the Scheme and to whom the Insurers agree to issue a Certificate of Insurance; and

(a)    who is a full-time member of the teaching staff of a school of Law at any Australian University; and

(b)    who has the status of lecturer or above.

 

6.3         Provided however that any indemnity pursuant to clause 6.2 of this Scheme will only be available (on the terms otherwise provided for in this Scheme) to such a person with respect to Claims arising from the preparation, for a fee or reward, of opinions on questions of law at the request of a legal practitioner, or at the request of the Attorney-General or Crown Solicitor of a State or Territory of Australia, or of the Attorney-General of the Commonwealth or the Australian Government Solicitor.

 

8          Legal services provided by an unqualified person will, prima facie, not be indemnified under the Scheme. Therefore, before a decision can be made on the appearance of an unqualified person, the “supervising” practitioner, unqualified person and the court need to be satisfied that the circumstances are such that the risk of damage as a result of a negligent act by the unqualified person is nil or minimal at most.

 

9          An assessment of the nature and degree of complexity of the matter and the context of the appearance will provide some indication of the matters that might arise but can never be definitive. Even simple applications for an adjournment can develop twists and turns that require the input of a legal practitioner with the client’s instructions.

 

10        For these reasons it is vital that the unqualified person not seek or be granted leave to appear unless a legal practitioner with instructions from the client is present in the court. In that way, if the matter becomes convoluted, the practitioner can step in and the client is protected.

 

Informed consent of the client

 

11        It is central to the fiduciary relationship that the informed consent of the client is required before a practitioner can make representations in relation to the client’s matter.

 

12        The client must not only consent to the nature of the representations, but to the person communicating them on their behalf. While the client might be seen to have implicitly consented to another practitioner in the same practice filling in for the main practitioner in an emergency or unforeseen circumstance, this can never be taken for granted where an unqualified person is the substitute.

 

13        The Society considers an unqualified person should not seek, or be granted leave, to appear unless they are able to inform the court that the client has consented to the appearance.

 

Learning the art of advocacy and obtaining court experience

 

14        The Society recognises the enforcement of the requirements referred to above will restrict the ability for unqualified persons to appear; and that students will question how they are expected to learn advocacy and obtain court experience. The Society considers the following points are relevant

 

14.1    Firstly, courts should not be used as a training ground or school for would-be legal practitioners. The courts’ business is serious and important. It demeans the court and its business if unqualified persons are permitted to appear without some controls.

 

14.2    Secondly, if the desire for a law student to obtain “court time” is weighed against the protection of the public and the administration of justice, it is clear that the protection of the public and the administration of justice must be given priority.

 

14.3    Thirdly, all practitioners are required to complete two years of supervised practice before being entitled to practise as a principal. This is the appropriate period for applying the advocacy skills learned in Practical Legal Training (PLT) via appearances in court. There appears to be no good reason why a law student needs to obtain such experience before being admitted as that is the purpose of the two-year supervision period prior to the issue of an unsupervised practising certificate.

 

14.4    Fourthly, the Society has observed that practitioners are increasingly relying on the court’s willingness to grant leave for unqualified persons to appear and are using PLT students on placement for what they consider to be minor appearances to save time and resources. Reliance on free or cheap student labour to perform legal services such as appearing in court appears to have become entrenched in many small practices, especially those which provide services in the legally assisted criminal and family law market. This is not only exploitative to the student, but it is extremely unfair to the client who often does not know about the substitution. It may also be a breach by the practitioner concerned of the terms of the contract with the aid provider.


 

Guidelines for Law Clerks and Practical Legal Training Students Appearing in Court

 

1.              These Guidelines are for the practitioners and unqualified persons concerned and there is no suggestion they are binding in a court.

 

2.              These Guidelines apply to unqualified persons seeking to appear on behalf of another person including (but not limited to)

 

2.1     unqualified persons employed or engaged by a legal practitioner; or

 

2.2     unqualified persons participating in a placement with a host legal practitioner as part of PLT or any other vocational course.

 

3.              Fundamental minimum requirements before leave is sought are

 

3.1     for the appearance to involve to what appears at the time to be a low risk and non-contentious matter such as an adjournment; and

 

3.2     to obtain the client’s prior informed consent; and

 

3.3     for a legal practitioner with the client’s instructions to be present in the court and prepared to intervene if needed; and

 

3.4      for the court to be informed of the above when leave to appear is sought.

 

4.              Other requirements (not required to be disclosed to the court) include

 

4.1      checking that the terms of any legal aid arrangement are not breached as a consequence of the unqualified person’s appearance;

 

4.2     ensuring that the client is only billed for the legal practitioner’s time in attending, and not the unqualified person’s time.

 

The guidelines are also available on the Society’s website, here.