In this section
START OF Policies and procedures
START OF Case management and practice management standards
END OF Case management and practice management standards
END OF Policies and procedures
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:
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.
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.
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.
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.
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.
In selecting counsel from the private bar, all reasonable endeavours should be made to:
When applicable, briefs to counsel must contain the following:
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).
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.
The lawyer must ensure the initial or final contribution has been paid or arrangements entered into for the payment of the final contribution.
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:
and all time limits must be observed.
At the initial interview with the client, the lawyer should:
The lawyer is to obtain signed statements from all relevant witnesses as required and relevant to each stage of the 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.
The following action is required for a conference:
The lawyer should:
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.
The lawyer should consider the appropriateness of conferences with counsel and arrange them as early as practicable with counsel and the client.
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.
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.
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.
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.
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.
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.
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.
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.
Refer to Part E of the Family Law Case Management Standards.
Refer to Part F of the Family Law Case Management Standards.
Refer to Part G of the Family Law Case Management Standards.
Refer to Part H of the Family Law Case Management Standards.
Refer to Part I of the Family Law Case Management Standards.
Lawyers working in this area should be familiar with:
and in particular, Review of National Disability Insurance Scheme Decisions Practice Direction.
Once the grant of legal aid has issued, the lawyer representing the client is to notify in writing:
The lawyer is to write to the client confirming:
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.
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.
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:
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:
When requesting the AAT to grant an extension/adjournment the AAT will require you address the following issues:
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:
While the support advocate cannot provide legal advice the support advocate can support a client, in consultation with the lawyer by:
Upon CAP funding being approved, the support advocate will:
The lawyer representing the client must:
The initial interview with the client subsequent to the granting of aid, the lawyer should:
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:
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:
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.
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:
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:
necessary for a decision to be made about an application will be available by the date of the hearing
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.
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:
The lawyer should:
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:
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:
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.
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.
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.