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Case management standards—civil law

Introduction

These case management standards have been prepared to assist Legal Aid Queensland (LAQ) staff and preferred suppliers who practise in the civil jurisdiction. They cover the following areas of practice:

  • anti-discrimination matters
  • veterans matters
  • NDIS matters.

They represent the minimum work necessary to be undertaken in representing the client. The objective of these standards is to assist officers in achieving an efficient and effective practice.

Compliance with the standards is a prerequisite to ensuring consistency of service delivery to clients, and is therefore an important requirement of undertaking legal aid work.

These case management standards should be read in conjunction with and not in substitution of the rules and practice directions of any courts which may issue from time to time.

Case management standards for domestic violence matters and child protection matters are now included in the Family Law Case Management Standards. Parts D-H of these Civil Law Case Management standards list the relevant Family Law Case Management Standards sections for lawyers to refer to. 

Part A – General

A1. Initial interview

The first contact with a client who subsequently obtains a grant of aid for a civil law matter is often via a legal advice interview. The lawyer is to explain the legal process and procedure relating to the client’s matter. Some client information will be obtained at this interview but there is generally insufficient time to obtain detailed instructions. 

A2. Grant of aid

Approving authority

The approving authority of a grant of aid is LAQ. Generally, the date aid is effective is the date the application is received by LAQ. A grant of aid must exist before any work can be done on the file. The lawyer should check the approval letter to determine the nature and appropriateness of the grant of aid. Where the grant of aid is subject to an initial contribution, the lawyer must not commence work until appropriate arrangements for the payment of the contribution have been made with the client.

Grant of aid confirmation should be provided to the other party or parties to proceedings in line with the Legal Aid Queensland Act 1997 s 28. This is an ongoing responsibility where the parties to proceedings change.

Payment

LAQ will pay the lawyer in accordance with LAQ’s set schedule of fees less the initial contribution from the client (where applicable). The schedule of fees includes the Scale of fees, rules for payment of accounts and claiming guidelines provided by LAQ. The lawyer is to explain to the client the policy in relation to retrospective contributions and ensure the client signs and returns the Payment of costs form prior to commencing work on the file.

A3. Management of the client and file

Following approval for a grant of aid, an initial letter enclosing a Client information sheet — Annexure A — should be sent to the client by the lawyer. The client must be informed of their obligations and rights in relation to costs payable for work to be done on behalf of the client and any rights to recovery of costs from another party to proceedings.

The lawyer must communicate regularly with the client. The lawyer should copy and forward to the client relevant substantive correspondence sent or received on behalf of the client.

The lawyer must be aware of and comply with the Best practice guidelines for lawyers working with people who have experienced domestic violence. The guidelines are attached as Annexure B.

The lawyer must be aware of and comply with the Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients. The guidelines are attached as Annexure F.

The lawyer must be aware of and comply with the Guidelines for working with interpreters. The guidelines are attached as Annexure G.

The lawyer must be aware of and comply with the Best practice guidelines for working with children and young people and its supporting framework. A copy of the guidelines and framework are attached at Annexure I and J.

A4. Counsel

In selecting counsel from the private bar, all reasonable endeavours should be made to:

  1. Identify female counsel in the relevant practice area;
  2. Genuinely consider engaging such counsel;
  3. Regularly monitor and review the engagement of female counsel; and
  4. Periodically report when called upon on the nature and rate of engagement of female counsel.

When applicable, briefs to counsel must contain the following:

  1. a logical and chronological index
  2. instructions to counsel
  3. copy of all relevant material
  4. the brief should be marked "Legal Aid Brief" and include details of the aid available for counsel if the client is represented by an in-house lawyer, or the LAQ pro forma invoice if the client is represented by a private lawyer.

In-house lawyers, when briefing counsel, must comply with the In-house lawyers briefing counsel policy, which can be found on the LAQ intranet (Legal Aid Queensland staff access only).

A5. Completion of matter

The client is to be advised of the outcome of the matter and provided with any relevant documentation before a file is closed. A final letter enclosing a sealed copy of any orders is to be forwarded to the client. If appropriate, the letter should also contain relevant advices with respect to time limitations (including appeal time limits), the consequences of breaches of the orders and any follow-up matters.

The lawyer should notify LAQ of the outcome of a file when submitting their final account for payment and finalising the file.

A6. Initial/final contribution

The lawyer must ensure the initial or final contribution has been paid or arrangements entered into for the payment of the final contribution.

A7. Appeal

The lawyer should consider the appropriateness of any orders which have been made and the potential merit for appeal or judicial review. If appropriate the matter should be discussed with the client including:

  • the time frame for an appeal
  • risk of a less favourable outcome
  • potential liability for costs if unsuccessful
  • effect of appeal on the execution of order

and all time limits must be observed.

Part B – Case management standards specific to anti-discrimination matters

B1. Interview

At the initial interview with the client, the lawyer should:

1. Administrative and legal requirements

  1. ascertain whether an interpreter is required and utilise interpreters in accordance with the Language Services Policy 
  2. obtain full particulars of all other parties, including current address if possible
  3. identify any possible conflicts and act according to the Conflicts of Interest Policy
  4. explain the lawyer’s role, and the limitations of that role
  5. explain the client’s role
  6. identify all relevant time limits, advise client regarding all revelant time limits and act to secure clients' interests within those time limits
  7. obtain authorities and request copies of any documentation relevant to the matter
  8. explain the legal processes and procedures specific to anti-discrimination matters
  9. obtain a comprehensive account of the circumstances surrounding the complaint of discrimination and outcomes sought by the client. Following this interview, the lawyer is to prepare a statement of the client which must be signed by the client
  10. provide referrals on other relevant and available legal remedies eg personal injury, work cover, workplace health and safety complaints etc. 

2. Non-administrative or legal requirements

  1. be prepared to work with or through interpreters, support workers and friends or family where appropriate, but be sure to encourage the client to participate to the greatest possible degree
  2. be sympathetic to the emotions and concerns the client may have, and be prepared to divert from the usual process if these emotions or concerns dictate
  3. be familiar with other needs or issues that may be addressed and be prepared to offer meaningful advice and referrals
  4. be focused in your approach to obtaining sufficient information to properly represent the client, and do not allow the interview to become sidetracked.

B2. Witnesses and supporting evidence

The lawyer is to obtain signed statements from all relevant witnesses as required and relevant to each stage of the complaint. 

B3. Lodging a complaint

When lodging a complaint to the Human Rights  Commission (AHRC)/Anti-Discrimination Commission Queensland (ADCQ), the submission should include a summary of the relevant facts that prove discrimination.

Where a complaint has already been made to the Commission, the lawyer should consider whether the client has adequately presented their case and whether additional information should be provided to clarify relevant issues including whether the appropriate respondents have been named. 

B4. The conciliation conference

The following action is required for a conference:

  1. Prior to the conference, discuss with the client any monetary and non-monetary outcomes sought by the client. Research decided tribunal cases and ADCQ/AHRC case studies/conciliation registers and advise the client about possible outcomes including quantum.
  2. Prior to the conference:
    1. for complaints to ADCQ: request the commissioner's permission in writing to represent the client at the conciliation conference under section 163 of the Anti Discrimination Act 1991 (Qld)
    2. for complaints to AHRC: advise the Commission in writing that it is your intention to seek consent of the person presiding at the conciliation conference to represent the client at the conference (section 46PK(5)(a)) of the Australian Human Rights Commission Act 1986 (Cth) 
  3. Arrange for the client to attend for a brief interview for 15 to 30 minutes prior to the conference time to confirm the issues and concerns of the client and the confidentiality provisions of the conciliation conference, and remind the client of the conference procedure.
  4. During the conference the lawyer should:
    1. ensure the following issues are addressed:
      • the relevant facts
      • the impacts of the discrimination on the client, and
      • how the respondent/s conduct contravenes the legislation
    2. whether the client or the lawyer addresses the issues is a matter for professional judgment. The lawyer should supply necessary details omitted by the client 
    3. ask for a private meeting if the client becomes distressed or otherwise requires legal advice
    4. if the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
    5. at private meetings during the conference, carefully explain options and proposals discussed during the conference to the client and give the appropriate legal advice. The consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed. The client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement. Reality test all proposals for agreement with the client including risk of costs if complaint proceeds
    6. ensure that any agreement reached is explained in detail to the client and is fully understood by the client.

B5. Confirm outcome with client

  1. If an agreement was reached by the parties, the lawyer is to write a letter to the client confirming the agreement and enclosing a typed copy of the agreement.
  2. Where no agreement is reached, advise client in writing of time limits for referring complaint to the Queensland Civil and Administrative Tribunal (QCAT) or Queensland Industrial Relations Commission (QIRC), or lodging application in the Federal Circuit Court of Australia (FCC) or Federal Court following termination of the complaint by the AHRC regardless of whether they will be legally aided for those proceedings.

B6. Preparation for proceedings in the QCAT, QIRC, FCC or Federal Court

Preparation at QCAT/QIRC:

The lawyer should:

  1. apply for and receive relevant grants of aid before acting for the client in QCAT/QIRC
  2. follow directions of QCAT/QIRC in a timely manner
  3. inform the client in writing of all directions made by QCAT/QIRC including:
    1. filing dates, and
    2. dates on which they must attend QCAT/QIRC , confirming their need to attend
  4. as directed, prepare application for leave to represent the client at QCAT/QIRC and ensure the client is aware that leave must be sought and what the consequences of refusal are
  5. where leave to represent the client at QCAT/QIRC is refused, assist the client, within the boundaries of the grant of aid, to prepare their case and represent themselves
  6. prepare complainant’s contentions to be settled by counsel
  7. take statements from all relevant witnesses at an appropriate stage
  8. consider whether expert evidence is appropriate, and if so, apply for grant of legal aid and organise report/s
  9. consider whether a grant of aid should be obtained for counsel to appear at the compulsory conference and apply for it
  10. make necessary applications for notice/s requiring witness to attend or produce document or thing and arrange conduct monies
  11. inform witnesses of hearing dates and ensure they have a copy of their statements, that they are available for giving evidence and arrange times for their attendance to minimise waiting time
  12. liaise with the other parties/their legal representatives as required.

Preparation at FCC/Federal Court

The lawyer should:

  1. apply for and receive relevant grants of aid before acting for client in FCC/Federal Court
  2. file application (FCC)/originating application (Federal Court)
  3. follow directions of the court in a timely manner
  4. inform client in writing of all directions made by the court including:
    1. filing dates, and
    2. dates on which they must attend the court, confirming their need to attend
  5. if pleadings (points of claim/statement of claim) are directed by the court, prepare them for settling by counsel
  6. consider whether expert evidence is appropriate, and if so, apply for grant of legal aid and organise report/s
  7. take affidavits from all relevant witnesses at an appropriate stage
  8. consider whether a grant of aid should be obtained for counsel to appear at the mediation and apply for it
  9. issue necessary subpoenas, together with conduct monies
  10. inform witnesses of hearing dates and ensure they have a copy of their affidavit, that they are available for giving evidence and arrange times for their attendance to minimise waiting time
  11. liaise with the other parties/their legal representatives as required.

B7. Alternative dispute resolution at QCAT/QIRC/FCC/Federal Court

QCAT/QIRC – compulsory conference

  1. Where leave to represent client is obtained from QCAT/QIRC , attend at compulsory conference, with counsel (where appropriate and a grant of aid obtained) and client
  2. Be prepared to identify and clarify the issues in dispute, identify questions to be decided by QCAT/QIRC and where appropriate, offer solutions to the dispute without proceeding to hearing
  3. Ask for a private meeting if the client becomes distressed or otherwise requires legal advice
  4. If the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
  5. At private meetings during the conference, carefully explain options and proposals discussed during the conference to the client and give the appropriate legal advice. The consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed. The client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement. Reality test all proposals for agreement with the client including risk of costs if complaint proceeds
  6. Ensure that any agreement reached is explained in detail to the client and is fully understood by the client
  7. If an agreement is reached by the parties, the lawyer is to write a letter to the client confirming the agreement and enclosing a typed copy of the agreement.

Mediation in FCC/Federal Court

  1. Attend at mediation (where ordered), with counsel (where appropriate and a grant of aid obtained) and client
  2. Be prepared to identify and clarify the issues in dispute, identify questions to be decided by the court and where appropriate, offer solutions to the dispute without proceeding to hearing
  3. Ask for a private meeting if the client becomes distressed or otherwise requires legal advice
  4. If the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
  5. At private meetings during the mediation, carefully explain options and proposals discussed during the mediation to the client and give the appropriate legal advice. The consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed. The client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement. Reality test all proposals for agreement with the client including risk of costs if complaint proceeds
  6. Ensure that any agreement reached is explained in detail to the client and is fully understood by the client
  7. Where agreement is reached, liaise with other party/s for filing of consent orders
  8. If an agreement is reached, the lawyer is to write a letter to the client enclosing a copy of the signed agreement and the consent orders (where relevant).

B8. Brief counsel 

The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant documentation. Instructions to counsel should set out the appearance dates, the basic premise of the case and list the witnesses to be called, whether complainant’s contentions/pleadings need to be settled and the date for filing, and fees payable under LAQ’s Scale of Fees.

B9. Conference with counsel

The lawyer should consider the appropriateness of conferences with counsel and arrange them as early as practicable with counsel and the client.

B10. Attend at the hearing at QCAT/QIRC/FCC/Federal Court and instruct counsel

The lawyer should ensure all witnesses are available for giving evidence and arrange times for their attendance to minimise waiting time. The lawyer should take accurate records of the proceedings including witness names and times of hearing.

After the hearing is concluded write to the client informing them of the outcome and provide sealed copies of orders made or advising of the expected date of judgment if known.

Ensure all accounts are finalised in a timely manner.

B11. Appeals

Following final judgment being delivered by the court or tribunal, write to the client informing them of the orders made and reasons for judgment, supplying copies of both sets of documents if they are available.

Consider the appropriateness or otherwise of appeal and inform the client of their options in relation to appeals including relevant time limits.

B12. Enforcement

Following a resolution by agreement or by judgement the lawyer is to advise the client of enforcement options, prospects of success and merits of any enforcement action.

Where appropriate the lawyer is to assist the client to apply for a grant of aid to enforce the agreement/judgment, taking into account the respondent’s assets and the prospects of success of an enforcement action.

B13. General matters

At each stage of the application the lawyer is to advise the client on prospects of success and merits of their claim and comply with all relevant Grants policies.

At each stage of the application the lawyer must assist the client, where appropriate, to apply for all relevant grants of aid.

B14. Legal Costs and Legal Aid Queensland Grants Policy

The lawyer must ensure compliance with relevant legislative requirements in relation to legal costs.

The lawyer must explain to the client, the client’s liability for costs in the various jurisdictions. 

The lawyer must explain to the client and ensure compliance with Legal Aid Queensland’s Grants policies in relation to payment of costs, issuing of initial contributions, issuing of retrospective contributions and the payment of costs under any payment of costs agreement. 

Part C –Case management standards specific to veterans’ matters

C1. Client’s statement

The lawyer must obtain a signed copy of the client’s statement. The statement must clearly nominate the contention/hypothesis relied on, in respect to any pension claimed and provide the reasons why such contentions/hypothesis is raised including examples if the contention/hypothesis points to a habit such as smoking or diet.

C2. Checklist

The lawyer must complete the Administration of war veteran’s matters checklist (Annexure E). The lawyer must complete and return the checklist to LAQ before consideration may be given to a request for legal aid for stage two of a matter.

C3. Specialists’ reports

It is a condition of LAQ authorisation to obtain a report, that the lawyer is to provide the specialist with the text of any relevant Statement of Principles and request the report also includes an assessment in reference to the relevant Statement of Principles. The specialist must certify the report was prepared with reference to the Statement of Principles and certify the number of hours spent to provide the report.

Part D – Acting in domestic violence matters

Refer to Part E of the Family Law Case Management Standards.

Part E – Acting as a domestic and family violence duty lawyer

Refer to Part F of the Family Law Case Management Standards.

Part F – Acting in child protection matters

Refer to Part G of the Family Law Case Management Standards.

Part G – Acting as a child protection duty lawyer

Refer to Part H of the Family Law Case Management Standards.

Part H – Acting as a separate representative — child protection

Refer to Part I of the Family Law Case Management Standards.

Part I – Acting in NDIS external reviews

Lawyers working in this area should be familiar with:

and in particular, Review of National Disability Insurance Scheme Decisions Practice Direction.

I.1      Notifying NDIA, AAT and Disability Advocate that the grant of aid has issued

Once the grant of legal aid has issued, the lawyer representing the client is to notify in writing:

  • the relevant registry of the Administrative Appeals Tribunal - in relation to the notification to the AAT that LAQ is representing the client the email /letter is to be forwarded to the registry and the District Registrar
  • the NDIA and
  • the Disability Advocate (if there is one acting on behalf of the client) that you represent the client.

The lawyer is to write to the client confirming:

  • CAP funding has been granted
  • the limits of the grant of legal aid and
  • that legal aid is granted in stages and that at the completion of each stage, an extension of legal aid must be applied for; which means LAQ:
    • will assess the merit of the matter proceeding to the next stage according to applicable guidelines and
    • will only authorise the lawyer to complete work in the stage for which the approval is given and
    • will approve the predetermined costs set for the grant of aid for each stage of the matter.

 I.2     Considering client’s legal capacity

The lawyer representing the client must consider the legal capacity of the client and make relevant inquiries regarding decision making for that client if there are issues relating to the client’s legal capacity.

The lawyer is to refer to the Queensland Handbook for Practitioners on Legal Capacity and take appropriate and relevant action as required.

https://qai.org.au/queensland-handbook-for-practitioners-on-legal-capacity/

In relation to representing children the lawyer is to be aware of the role of the person/s who have parental responsibility/guardianship for a child or the person appointed by the CEO of the NDIA to replace the person with parental responsibility. The lawyer is to familiarise themselves with the provisions of ss 5, 9, 74, 75, 76, 77 and 99 of the National Disability Insurance Act 2013.

In relation to representing persons with a disability the lawyer is to be aware of the role of plan nominees and correspondence nominees appointed under sections 86 and 87 of the National Disability Insurance Act 2013.   The lawyer is to familiarize themselves with the provisions of ss 5, 9, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99 of the National Disability Insurance Act 2013.

I.3      Obtaining evidence

Aid will not be granted unless the client has already lodged the external review application with the AAT.

Upon a grant of legal aid issuing the lawyer acting on behalf of the client must:

  1. write to the client or parent, guardian or nominee as referred to in paragraph I.2 requesting that they sign relevant authorities
  2. request the NDIA provide a copy of the T documents
  3. obtain from the client/parent, guardian or nominee or disability advocate all documentation relevant to the claim:
    1. all letters confirming decisions of the NDIA
    2. copy of the plan/original decision of the NDIA
    3. all relevant medical and other expert evidence
    4. all relevant invoices and quotes for disability support equipment etc
    5. internal review application
    6. internal review decision
    7. copy of application to the AAT
    8. any other material relevant to the external review including but not limited to:
      1. all orders, notices, letters and directions issued by the AAT in relation to an appeal
      2. all documents filed in the proceedings by the client and the NDIA
      3. copies of correspondence between the support officer and the NDIA and
      4. any documentation including statements, emails, letters etc which detail the client’s instructions to the support officer.
  4. identify what medical and other expert reports and evidence is required and obtain same
  5. identify what other evidence is required – quotes for equipment etc.

I.4      Seeking an adjournment

If the lawyer considers that it is necessary to seek an extension of time for filing of material in accordance with notices, orders or directions issued by the AAT or an adjournment of a case conference, conciliation, fast tracked hearing, jurisdictional hearing or hearing, the lawyer is to obtain the client’s, parent’s, guardian’s or nominee’s instructions and consent to the adjournment and:

  • fully explain the advantages and disadvantages associated the any adjournment
  • consider the impact of an adjournment on the current plan before the AAT and obtain the consent of the client to seek extensions/amendments to the plan under section 26 of the Administrative Appeals Tribunal Act 1975
  • notify the disability advocate of the client’s instructions
  • obtain, if possible, consent to the adjournment from the NDIA
  • write to the AAT registry requesting the adjournment setting out reasons supporting the request, proposed time frame and impact on the plan before the AAT. The lawyer is to contact relevant witnesses and establish time frames for filing of statements, reports etc or availability for hearing etc or
  • if the NDIA does not consent to the adjournment write to the AAT seeking a directions hearing on the matter.

When requesting the AAT to grant an extension/adjournment the AAT will require you address the following issues:

  • the reason provided for not complying with the requirement or direction
  • the amount of notice being given in requesting the extension/adjournment
  • impact any significant delays in progressing the application
  • whether any listed event will need to be moved
  • the length of additional time requested and
  • whether the NDIA opposes or supports the extension/adjournment.
  • I.5   Working with the Disability Advocate

    NDIS Appeal Support Advocates (support advocates) are funded by the Department of Social Services to support clients through the review process. Legal Aid commissions are funded to provide legal representation to participants who seek an external review of an NDIA decision through the Administrative Appeals Tribunal where the matter is novel and complex.

    Support advocates and lawyers are not decision makers (ie they are not legally appointed substitute or supported decision makers, carer, guardians, parents or nominees).

    Not all clients will have the support of a support advocate, however, if a client is being supported by a support advocate the lawyer representing the client must work effectively and supportively with the support advocate.

    The level of involvement of the support advocate will depend on:

    • the instructions of the client
    • the vulnerability of the client
    • the level of ability of the client to manage and participate in the process
    • whether the client has a carer, guardian, parent or nominee and that person’s ability to manage and participate in the process
    • the vulnerability of the carer, guardian, parent or nominee
    • where the client is located
    • any difficulties in communicating directly with the client.

    While the support advocate cannot provide legal advice the support advocate can support a client, in consultation with the lawyer by:

    • explaining and providing information about the NDIS, Pricing Guides, Operational Guidelines etc
    • explaining and providing information about the review process, including what is involved in appealing to the AAT
    • referring to the relevant Legal Aid Commission where legal issues are highlighted and an application has been made to the AAT, for a determination to be made as to whether legal services are warranted.

    Upon CAP funding being approved, the support advocate will:

    • notify the lawyer of the name and contact details of the support advocate who will be primarily responsible for representing the client
    • in consultation with the lawyer, obtain the client’s full instructions
    • brief the lawyer about the impact of the client’s disability, social issues impacting the client and matters relating to the client’s vulnerability
    • in any correspondence from the support advocate to the lawyer include the client or carer/guardian/parent/nominee
    • provide the lawyer with details of the dates (past and future) of all case conferences, conciliations and hearings and any other future critical dates
    • provide to the lawyer all relevant documentation in the support officer’s possession relating to the external review including:
      • all letters confirming decisions of the NDIA
      • copy of the plan/original decision of the NDIA
      • all relevant medical and other expert evidence
      • all relevant invoices and quotes for disability support equipment etc
      • internal review application
      • internal review decision
      • copy of application to the AAT
      • any other material relevant to the external review including but not limited to:
        • all orders, notices, letters and directions issued by the AAT in relation to an appeal
        • all documents filed in the proceedings by the client and the NDIA
        • copies of correspondence between the support officer and the NDIA
        • any documentation including statements, emails, letters etc which detail the client’s instructions to the support advocate
    • identify and provide contact details for the client’s medical and other specialists
    • identify and provide details of other relevant evidence required for the external review including – costings and quotes for equipment, services, items in the pricing guide etc
    • help manage client expectations in accordance with the lawyer's legal advice
    • help to prepare documents and witness statements
    • help to obtain client statements, reports from doctors, therapists and other experts
    • help to obtain quotes for equipment and services and
    • attend and provide support throughout the external review process at AAT conferences, conciliations and hearings.

    The lawyer representing the client must:

    • provide legal advice to the client
    • comply with all professional obligations under codes of ethics, regulations or other relevant industry standards
    • clarify the level of support the client, or the carer, guardian, parent or nominee seeks from the support advocate and act on the client’s instructions
    • always seek and obtain instructions from the client or the carer/guardian/parent/nominee, and not the support advocate
    • if the client instructs that they no longer wish to be represented by the support advocate, act on those instructions
    • notify the support advocate of the name and contact details of the lawyers who will be primarily responsible for representing the client
    • consult, as appropriate, with the support advocate regarding the NDIS, Pricing Guides, Operational Guidelines etc
    • in accordance with the client or the carer/guardian/parent/nominee’s instructions:
      • keep the support advocate informed of all relevant conference, conciliation and hearing dates
      • keep the support advocate informed of the progress of matter and where appropriate include and cc into all correspondence with client or the carer/guardian/parent/nominee
      • manage the client’s expectations
      • work with the support advocate (as the client’s or the carer, guardian, parent or nominee’s support person) to:
        • identify:
          • the relevant facts
          • the relevant legal issues, legislation and cases
          • identify outcomes sought by the client
        • prepare documents and statements
        • obtain client statements, reports from doctors, therapists and other experts
        • obtain quotes for equipment and services
    • resolve any conflicts with the support advocate in a timely fashion and in accordance with the client’s or carer/guardian/parent/nominee’s instructions.

    I.6      Initial interview

    The initial interview with the client subsequent to the granting of aid, the lawyer should:

    1. Administrative and legal requirements

    1. ascertain whether an interpreter is required and utilise interpreters in accordance with the Language Services Policy
    2. ascertain whether the client has or wants a support person, family member, guardian etc and as appropriate obtain the client’s consent for this person to be present during the initial interview
    3. ascertain whether the client has or wants an NDAP disability advocate and as appropriate obtain the client’s consent for this person to be present during the initial interview
    4. identify any possible conflicts and act according to the Conflicts of Interest Policy
    5. explain the lawyer’s role, and the limitations of that role
    6. explain the client’s role
    7. if the initial interview occurs in the context of an initial advice session clearly explain the limitations of advice, that a grant of aid has not yet been made and how the client is to apply for legal aid for representation
    8. identify all relevant time limits, advise client regarding all relevant time limits and act to secure client’s interests within those time limits
    9. obtain authorities and request copies of any documentation relevant to the matter
    10. explain the legal processes and procedures specific to NDIS matters
    11. obtain a comprehensive account of the legal issues, circumstances surrounding the external review, and the outcomes sought by the client
    12. subsequent to this interview, the lawyer is to prepare a lived experience statement for use at the case conference and to identify evidence to be obtained
    13. provide referrals on other relevant and available legal remedies eg social security, consumer law etc.

    2. Non-administrative or legal requirements

    1. be prepared to work with or through interpreters, support persons, carers, family members, guardians and disability advocates where appropriate, but be sure to encourage the client to participate to the greatest possible degree
    2. be sympathetic to the emotions and concerns that the client may have, and be prepared to divert from the usual process if these emotions or concerns dictate
    3. be familiar with other needs or issues that may be addressed and be prepared to offer meaningful support, advice and referrals
    4. be focused in your approach to obtaining sufficient information to properly represent the client, and do not allow the interview to become side tracked

    I.7   Jurisdictional hearing

    The lawyer representing the client must apply for and receive relevant grants of aid before acting for the client on a jurisdictional hearing in the AAT.

    Jurisdictional hearings are held to determine whether the AAT has jurisdiction to hear a matter on threshold questions relating to the application, eg extension of time to lodge application whether there is a reviewable decision.
    If counsel is being briefed ensure:

    1. a grant of aid has been obtained
    2. the brief is delivered in a timely manner
    3. counsel is informed of fee payable and the work covered by the grant of aid
    4. the invoice for the appearance is forwarded to counsel.

     

    The lawyer should ensure all relevant evidence and witness statements have been obtained, filed and served in accordance with any directions of the tribunal and, in any case, in advance of the hearing.
    All witnesses must be advised in advance of the date and time of the hearing and arrangements made to ensure they are available for giving evidence. Arrange times for their attendance to minimise waiting time. As permitted by the tribunal arrange for evidence to be provided by telephone link where the witness must otherwise travel to provide evidence.

    If the witness is an expert, the lawyer is to ensure:

    1. a grant of aid has been obtained and
    2. the expert is informed of fee payable and the work covered by the grant of aid.

    The lawyer should ensure that outlines of submissions are prepared, filed and served in accordance with any directions of the tribunal and, in any case, in advance of the hearing.
    The lawyer should take accurate records of the proceedings including witness names and times of hearing.
    After the hearing is concluded the lawyer is to meet with the client and explain the outcome of the hearing including if the decision has been reserved what this entails.
    The lawyer is to confirm the outcome in writing to the client, provide sealed copies of orders made or advising of the expected date of the decision if known.
    Ensure all accounts (counsel, expert etc) are finalised in a timely manner.

    I.8    The case conference

    The lawyer representing the client must apply for and receive relevant grants of aid before acting for the client at the case conference in the AAT.
    A case conference is an informal private meeting to discuss whether the client and NDIA can reach agreement. The case conference is conducted by the conference registrar and usually occurs 2 to 4 weeks after lodging the application.

    If the lawyer intends seeking an adjournment they must do so in advance of the conference, have the client’s instructions and have a good reason.

    To prepare for a case conference:

    1. write to the NDIA and request confirmation they have provided all reasons upon which the internal review decision was based
    2. prior to the case conference, discuss with the client outcomes sought by the client; research decided tribunal cases and advise the client about relevant legal issues and possible outcomes
    3. advise the client that case conferences and conciliations are confidential
    4. be prepared with dates and times for the obtaining and filing of medical reports, witness statements etc which will be relevant to the issuing of any directions should the matter fail to settle at the case conference
    5. obtain, where possible all relevant evidence, in advance of the case conference and file copies of all evidence in the AAT and serve upon NDIA
    6. advise the client of the purpose and procedures relevant to a case conference; the lawyer is to advise the client of confidentiality of the case conference process
    7. during the case conference the lawyer should:
      1. ensure the following issues are addressed:
        • the relevant facts
        • the relevant legal issues, legislation and cases
        • identify outcomes sought by the client.
      2. decide whether the client or the lawyer addresses the issues. (this decision is a matter for professional judgement; the lawyer should supply necessary details omitted by the client) 
      3. ask for a private meeting if the client becomes distressed or otherwise requires legal advice
      4. if the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
      5. at private meetings during the conference, carefully explain options and proposals discussed during the case conference to the client and give the appropriate legal advice; the consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed; the client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement; reality test all proposals for agreement with the client
      6. ensure that any agreement reached is explained in detail to the client and is fully understood by the client
    8. if the matter does not settle at the case conference directions will issue for the future hearing of the application including a conciliation conference date.

    I.9    Fast tracked hearing

    The lawyer representing the client must apply for and receive relevant grants of aid before acting for the client at a fast tracked hearing in the AAT.
    Applicant can ask for a fast tracked hearing after the case conference but only if:

    1. all the relevant:
      1. medical and expert evidence
      2. quotes and invoices
      3. statements of witnesses and
      4. witnesses

      necessary for a decision to be made about an application will be available by the date of the hearing

    2. the AAT is satisfied that a fast-track hearing would not disadvantage the applicant or the NDIA

    Before requesting a fast tracked hearing ensure items i to iv above are available.
    Obtain the client's written instructions to request a fast tracked hearing after fully explaining the advantages and disadvantages of proceeding to a fast tracked hearing.
    Contact the NDIA and seek their support for a fast tracked hearing.
    Make request to AAT for fast tracked hearing.
    Comply with matters set out in Clause I.11.

    I.10    Conciliation

    The lawyer representing the client must apply for and receive relevant grants of aid before acting for the client at a conciliation in the AAT.
    Conciliation is an informal, private meeting at which the applicant and the NDIA talk about the application and try to reach agreement. It is a form of alternative dispute resolution that is used by the AAT to review National Disability Insurance Scheme decisions.

    To prepare for a conciliation:

    1. write to the NDIA and request confirmation they have provided all reasons upon which the internal review decision was based
    2. prior to the conciliation, discuss with the client outcomes sought by the client; research decided tribunal cases and advise the client about relevant legal issues and possible outcomes
    3. advise the client that case conferences and conciliations are confidential
    4. be prepared with dates and times for the obtaining and filing of medical reports, witness statements etc and which will be relevant to the issuing of any directions should the matter fail to settle at the conciliation
    5. obtain, where possible all relevant evidence, in advance of the conciliation and file copies of all evidence in the AAT and serve upon NDIA
    6. as permitted by the tribunal arrange for parties to attend by telephone link where the witness must otherwise travel to provide evidence
    7. advise the client of the purpose and procedures relevant to a conciliation; tThe lawyer is to advise the client of confidentiality of the conciliation process
    8. during the conciliation the lawyer should:
      1. ensure the following issues are addressed:
        • the relevant facts
        • the relevant legal issues, legislation and cases
        • identified outcomes sought by the client
      2. whether the client or the lawyer addresses the issues is a matter for professional judgement. supply necessary details omitted by the client
      3. ask for a private meeting if the client becomes distressed or otherwise requires legal advice
      4. if the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
      5. at private meetings during the conciliation, carefully explain options and proposals discussed during the conciliation to the client and give the appropriate legal advice; the consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed; the client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement; reality test all proposals for agreement with the client
      6. ensure that any agreement reached is explained in detail to the client and is fully understood by the client
    9. If the matter does not settle at the conciliation, directions will issue for the future hearing of the application.

    I.11    If matter settles at the case conference or conciliation

    1. If the matter settles:
      1. draft agreement
      2. have client confirm in writing agreement with the draft
      3. forward to the NDIA for approval
      4. seek client's written instructions to any changes sought to the wording/content of the agreement
      5. submit minute of agreement to the AAT for approval.
    2. Once the AAT has approved the order send a copy to the client. If a new plan is to issue ensure the new plan implements the approved order of the AAT.

    I.12    Hearing

    The lawyer should:

    1. apply for and receive relevant grants of aid before acting for the client at a hearing in the AAT
    2. follow directions of the AAT in a timely manner
    3. inform the client in writing of all directions made by the AAT including:
      1. filing dates for evidence and statements and
      2. dates on which they must attend AAT, confirming their need to attend
    4. If counsel is being briefed ensure:
      1. a grant of aid has been obtained
      2. the brief is delivered in a timely manner
      3. counsel is informed of fee payable and the work covered by the grant of aid and
      4. the invoice for the appearance is forwarded to counsel
    5. ensure all relevant evidence and witness statements have been obtained, filed and served in accordance with any directions of the tribunal and, in any case, in advance of the hearing
    6. comply with any direction by the AAT to provide a Hearing Certificate
    7. ensure all witnesses are advised in advance of the date and time of the hearing and arrangements are made to ensure they are available for giving evidence; arrange times for their attendance to minimise waiting time; as permitted by the tribunal arrange for evidence to be provided by telephone link where the witness must otherwise travel to provide evidence
    8. if the witness is an expert, ensure:
      1. a grant of aid has been obtained  and
      2. the expert is informed of fee payable and the work covered by the grant of aid
    9. ensure that outlines of submissions are prepared, filed and served in accordance with any directions of the tribunal and, in any case, in advance of the hearing
    10. take accurate records of the proceedings including witness names and times of hearing
    11. after the hearing is concluded, meet with the client and explain the outcome of the hearing including if the decision has been reserved what this entails
    12. confirm the outcome in writing to the client, provide sealed copies of orders made or advising of the expected date of the decision if known
    13. ensure all accounts (counsel, expert etc) are finalised in a timely manner.

    I.13   Appeals

    Following final judgment being delivered by the AAT, write to the client, parent/guardian/nominee and disability advocate informing them of the orders made and reasons for judgment, supplying copies of both sets of documents if they are available.

    Consider the appropriateness or otherwise of appeal and where appropriate consider obtaining counsel’s opinion on prospects of success of an appeal.

    Inform the client, parent/guardian/nominee and disability advocate of their options in relation to appeals to the Federal Circuit Court (FCC)/Federal Court and provide advice explaining:

    1. that appeals to the FCC/Federal Court are on questions of law only
    2. prospects of success of the appeal
    3. risk of costs if applicable
    4. relevant time limits and
    5. need to apply for an extension of the grant of legal aid.

    Lawyers before appealing matter to the Federal Court need to familiarise themselves with:

    There are no specific practice notes in relation to NDIS appeals beyond decisions from the AAT falling into the practice note above.

    The practice note covers:

    • commencing proceedings
    • urgent applications both original and interlocutory
    • case management including:
      • first case management hearing
      • outline of case
      • pre trial case management hearing
    • additional requirements for Administrative law cases
    • alternative dispute resolution
    • discovery
    • evidence
    • witnesses
    • interlocutory steps
    • consent orders involving Federal tribunals and
    • pre trial steps.

    There is also a central practice note and general practice notes that are to be followed when conducting matters in the Federal Court.

    It is intended that once we have run NDIS matters in the Federal Court that these standards will be updated to reflect what happens in practice.

    I.14    Preparation for proceedings in the Federal Circuit Court of Australia or Federal Court

    Preparation at FCC/Federal Court

    The lawyer should:

    1. obtain client's instructions to proceed with an appeal to the Federal Court or FCC
    2. apply for and receive relevant grants of aid before acting for client in FCC/Federal Court
    3. file application (FCC)/originating application (Federal Court) within relevant time limit
    4. follow directions of the court in a timely manner
    5. inform client in writing of all directions made by the court including:
      1. filing dates and
      2. dates on which they must attend the court, confirming their need to attend
    6. if pleadings (points of claim/statement of claim) are directed by the court, prepare them for settling by counsel
    7. consider whether expert evidence is appropriate, and if so, apply for grant of legal aid and organise report/s
    8. take affidavits from all relevant witnesses at an appropriate stage
    9. consider whether a grant of aid should be obtained for counsel to appear at the mediation and apply for it
    10. issue necessary subpoenas, together with conduct monies
    11. inform witnesses of hearing dates and ensure they have a copy of their affidavit, that they are available for giving evidence and arrange times for their attendance to minimise waiting time
    12. liaise with the other parties/their legal representatives as required.

    1.15   Alternative dispute resolution in the FCC/Federal Court

    Mediation in FCC/Federal Court

    The lawyer should:

    1. attend at mediation (where ordered), with counsel (where appropriate and a grant of aid obtained) and client
    2. be prepared to identify and clarify the issues in dispute, identify questions to be decided by the court and where appropriate, offer solutions to the dispute without proceeding to hearing
    3. ask for a private meeting if the client becomes distressed or otherwise requires legal advice
    4. if the client starts to interrupt when someone else is speaking, quietly remind them that interrupting is not permitted
    5. at private meetings during the mediation, carefully explain options and proposals discussed during the mediation to the client and give the appropriate legal advice; the consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed; the client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement; reality test all proposals for agreement with the client including risk of costs if complaint proceeds
    6. ensure that any agreement reached is explained in detail to the client and is fully understood by the client
    7. where agreement is reached, liaise with other party/s for filing of consent orders
    8. if an agreement is reached, the lawyer is to write a letter to the client enclosing a copy of the signed agreement and the consent orders (where relevant).

    1.16   Attend at the hearing at the FCC/Federal Court and instruct counsel

    The lawyer should:

    1. apply for and receive relevant grants of aid before acting for the client at a hearing in the FCC/Federal Court
    2. follow directions of the FCC/Federal Court in a timely manner
    3. inform the client in writing of all directions made by the FCC/Federal Court including:
      1. filing dates for evidence and statements and
      2. dates on which they must attend FCC/Federal Court, confirming their need to attend
    4. If counsel is being briefed ensure:
      1. a grant of aid has been obtained
      2. the brief is delivered in a timely manner
      3. counsel is informed of fee payable and the work covered by the grant of aid and
      4. arrange for the invoice for the appearance to be forwarded to counsel.
    5. ensure all relevant evidence and witness statements have been obtained, filed and served in accordance with any directions of the court and, in any case, in advance of the hearing
    6. ensure all witnesses are advised in advance of the date and time of the hearing and arrangements made to ensure they are available for giving evidence; arrange times for their attendance to minimise waiting time; as permitted by the court arrange for evidence to be provided by telephone link where the witness must otherwise travel to provide evidence
    7. if the witness is an expert, ensure:
      1. a grant of aid has been obtained  and
      2. the expert is informed of fee payable and the work covered by the grant of aid.
    8. ensure that outlines of submissions are prepared, filed and served in accordance with any directions of the Court and, in any case, in advance of the hearing
    9. take accurate records of the proceedings including witness names and times of hearing
    10. after the hearing is concluded, meet with the client and explain the outcome of the hearing including if the decision has been reserved what this entails
    11. confirm the outcome in writing to the client, provide sealed copies of orders made or advising of the expected date of the decision if known
    12. ensure all accounts (counsel, expert etc) are finalised in a timely manner.

    I.17    Brief counsel

    The lawyer should retain and brief counsel as soon as practicable. The brief to counsel must include all relevant documentation. Instructions to counsel should set out the appearance dates, the basic premise of the case and list the witnesses to be called, whether complainant’s outline of submissions needs to be settled and the date for filing, and fees payable under LAQ’s Scale of Fees.

    I.18    Conference with counsel

    The lawyer should consider the appropriateness of conferences with counsel and arrange them as early as practicable with counsel and the client. The lawyer must notify the client or parent/guardian/nominee and the disability advocate of the dates and time of any conference with counsel.

    I.19    General matters

    At each stage of the application the lawyer is to advise the client on prospects of success and merits of their claim and comply with all relevant Grants policies.

    At each stage of the application the lawyer must assist the client, where appropriate, to apply for all relevant grants of aid.

    I.20    Legal Aid Queensland legal costs and Grants policy

    The lawyer must ensure compliance with relevant legislative requirements in relation to legal costs.

    The lawyer must explain to the client, the client’s liability for costs in the various jurisdictions. 

    Document effective date

    January 2018

    Annexures

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