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
• Consumer law
• Employment law
• Farm and Rural Legal Service
• National Disability Insurance Scheme (NDIS) Appeals
• Veterans 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.

Where possible the client should supply all relevant material to the lawyer prior to this initial interview.

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:

• Working with clients who have been affected by domestic violence
• Administrative and client service staff working with people who have experienced domestic violence
• Lawyers working with people who have experienced domestic violence
• Lawyers working with people who have experienced sexual violence
• Guidelines framework for working with children and young people
• Lawyers working with Aboriginal and Torres Strait Islander clients. 

A4. Counsel

The lawyer must be aware of and comply with LAQ’s Inhouse lawyers briefing counsel policy

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

1. Briefing decisions must be objective, independent, apolitical and impartial;
2. Identify female counsel in the relevant practice area;
3. Identify junior First Nations counsel in the relevant practice area under relevant dual counsel briefing policy;
4. Genuinely consider engaging such counsel;
5. Regularly monitor and review the engagement of female counsel; and
6. Periodically report when called upon on the nature and rate of engagement of female and junior First Nations 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 external reviews to the General Division of the Administrative Appeals Tribunal - National Disability Insurance Scheme (NDIS)

These case management standards – Acting in external reviews to the General Division of the Administrative Appeals Tribunal National Disability Insurance Scheme (NDIS) - are to be read in conjunction with the Australian Solicitors Conduct Rules and (where appropriate) with the case management standards - Civil Law - General (Part A). 

I.1 Relevant legislation

Lawyers working in this area should be familiar with the relevant Acts, Regulations, Regulator Guidance, case law and ombudsman guidance in the following areas of practice:

• National Disability Insurance Scheme Act 2013 (Cth)
  • National Disability Insurance Scheme Act 2013
• National Disability Insurance Scheme Rules (Cth) and in particular:
  • NDIS Becoming a Participant Rules 2016
  • NDIS Plan Management Rules 2013
  • NDIS Nominees Rules 2013
  • NDIS Supports For Participants Rules 2013
  • NDIS SDA Rules 2020
  • NDIS Compensation Reduction Rules 2013
• Operational Guidelines
  • https://www.ndis.gov.au/Operational-Guidelines
• COAG principles to determine the responsibilities of the NDIS and other service systems dated 27 November 2015
  • ndis-principles-determine-responsibilities-ndis-and-other-service-1.pdf (dss.gov.au)
• Explanatory memorandum for the NDIS legislation and rules
• Administrative Appeals Tribunal and Federal Court decisions (refer also to LAQ database for NDIS decisions)
• Administrative Appeals Tribunal Act 1975 (Cth)
  • Administrative Appeals Tribunal Act 1975 (legislation.gov.au)
• Administrative Appeals Tribunal Regulations 1975 (Cth)
  • Administrative Appeals Tribunal Regulation 2015 (legislation.gov.au)
• Practice Directions, Guides, Guidelines and policies of the Administrative Appeal Tribunal:
  • http://www.aat.gov.au/resources/practice-directions-guides-guidelines-and-policies
  • Review of National Disability Insurance Scheme Decisions Practice Direction - COVID-19 special measures practice direction – National Disability Insurance Scheme | Administrative Appeals Tribunal (aat.gov.au)
  • Guidelines on Pronunciation of names and forms of address

I.2 Grant of legal aid

The approving authority of a grant of legal aid is the Grants Division of Legal Aid Queensland (LAQ).

A grant of legal aid must exist before any work can be done on the file.

In all cases the lawyer representing the client is to open the file in accordance with Part A of these Case Management Standards – civil law. 

Once the grant of legal aid has issued, the lawyer representing the client is to obtain instructions and notify the following in writing, that LAQ is representing the client:

• the relevant registry of the Administrative Appeals Tribunal:
  • requesting confirmation of any listed conference or hearing dates and any directions made,
  • requesting an adjournment/amended orders/amended directions (if appropriate) whilst legal aid is investigating, and
  • asking that any filed material additional to the T docs is provided in due course.
• the NDIA Legal Representative, and
• the Disability Advocate (if there is one acting on behalf of the client).

The lawyer is to write to the client confirming:

• legal aid has been granted,
• the limits and scope of the grant of legal aid,
• conditions of the grant of legal aid,
• role of LAQ lawyer, 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.3 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.

Take appropriate and relevant action as required with reference to:

• the QAI & ADA supported decision making guide – Supported Decision Making Helping people to make their own decisions (A guide for adults and those supporting them)
• the Queensland Handbook for Practitioners on Legal Capacity

I.3.1    Capacity Consideration for client with mental health condition intellectual disability or cognitive impairment

When providing representation to a client who has a mental health condition, intellectual disability or cognitive impairment:

1. the lawyer must assume the client is competent and has the capacity to provide instructions and make informed decisions unless there is evidence to rebut that presumption.
2. client decisions which with hindsight look “bad”, “wrong”, “unpopular” “ignorant” or “eccentric” or “which other people do not agree with” should be distinguished from the capacity of the person who made them and are not necessarily of themselves indicative of a person’s capacity.
3. capacity should not be assessed solely on the basis of a person’s appearance, their age, the manner in which they behave and communicate or any (physical or intellectual) disability or impairment they may have.
4. capacity is time, domain and decision specific, and the lawyer must use their judgement to determine whether the client has capacity to participate in the advice session and provide instructions.
5. consideration must also be given to what practical steps can be taken and what supports can be put in place to enable the client to provide instructions including assistance from a third party,
6. where client authorises or request for a third party to provide instructions on their behalf, authority for obtaining instructions from third parties should be obtained from the client and must be kept in the file,
7. where the lawyer holds concerns that the client cannot give instructions the lawyer must then consider:
   1. ss 5, 9, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 and 98 of the National Disability Insurance Act 2013.)
   2. whether there is substituted decision maker in place as evidenced by:
      • the appointment by a court or Tribunal of the Public Trustee, Public Guardian,
      • appointment of a litigation guardian,
      • a power of attorney or enduring power of attorney that gives a third party power over legal matters (it is important that the validity of these documents and whether their operation has been triggered in considered closely),
      • a plan nominee or parental responsibility appointment,
      • what supports the client needs to make a decision, including assistance from a third party;
   3. whether representation of the client can proceed.
8. where consideration regarding the client’s capacity to provide instructions has been undertaken by the lawyer, contemporaneous notes of the reasons for the decision to or not to proceed with the representation must be made.

I.3.2    Capacity Consideration for children and young people

When representing a child consideration is to be given as to whether the child can provide instructions and receive advice:

• there is no legislation in Queensland that sets a specific chronological age for when a child or young person is considered competent to instruct a lawyer,
• parental/guardianship rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child,
• consideration may need to be given to any parental responsibility orders made by the Family Court or child safety orders by State Courts as applicable to the client’s individual situation,
• the role of the person/s who have parental responsibility/guardianship for a child or the person being 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 78 of the National Disability Insurance Scheme Act 2013),
• the capacity of children and young people to provide instructions and make decisions develops and increases over time,
• lawyers are to assess an individual child or young person’s capacity to instruct a lawyer,
• assessing capacity involves consideration of the child’s age, maturity and as to whether the child has achieved a sufficient understanding and intelligence to enable them to understand fully what is proposed and make an informed decision,
• beyond determining capacity to instruct a lawyer, a child or young person’s age and maturity are relevant to the substantive areas of law that affect them,
• where a parent or guardian is seeking representation for a child regarding external review of a NDIA decision the age, maturity and disability of the child is to be taken into account. The lawyer is to assess the appropriateness of providing advice to the child, parent and or third party.  Consideration is to be given to whether a parental responsibility appointment has been made by the NDIA or that the parent has been appointed as the plan nominee,
• consideration needs to be given to the nature of the legal advice to be provided and the appropriateness of the child being present for that advice, as it may not be appropriate for a child to be present due to the nature of the material to be discussed. The lawyer must assess this on a case-by-case basis,
• where consideration regarding the child’s capacity to provide instructions has been undertaken by the lawyer, contemporaneous notes of the reasons for the decision to or not to proceed with representation must be made.
• evidence of parental responsibility/plan nominee/guardianship orders and appointments are to be contemporaneously saved to the file record.

Refer to Legal Aid Queensland’s Best Practice Guidelines framework working with children and young people - Best practice guidelines framework Working with children and young people

I.4 Obtaining evidence

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

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

1. contact the client and obtain initial instructions regarding the case refer to paragraph I.7,
2. as required, write to the client or parent, guardian or nominee requesting that they sign relevant authorities,
3. obtain a copy of the T Documents (if not already available to LAQ),
4. 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.
5. identify what medical and other expert reports and evidence is required and obtain same,
6. identify what other evidence is required – quotes for equipment etc.

I.5 Seeking adjournments & variations to orders & directions

If the lawyer considers it is necessary to seek an adjournment or 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 with 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 (AAT Act),
  • section 47A of the NDIS Act,
  • section 48 of the NDIS Act or
  • section 42D of the AAT Act, as appropriate
• notify the disability advocate of the client’s instructions,
• notify NDIA of intention to seek adjournment or variations to orders & Directions and obtain, if possible, the NDIA’s consent to the adjournment,
• contact relevant witnesses and establish time frames for filing of statements, reports etc or availability for hearing etc
• 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.

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.6 Working with disability advocates

NDIS disability 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 case satisfies legal aid Qld’s merits test; and

• the case is likely to result in a wider community benefit; or
• the applicant for aid is experiencing significant disadvantage and would likely realise a substantial benefit from legal representation.

Disability 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 disability advocate, however, if a client is being supported by a support advocate the lawyer representing the client must work effectively and supportively with the disability advocate.

Where a disability advocate is supporting the client ensure that you obtain the client’s authority to work with and disclose information relating to the client’s matter to the disability advocate. A record of the client’s written/email or verbal consent must be stored on the client’s paper and electronic file record.

If the client instructs that they no longer wish to be represented by the support advocate, act on those instructions. A record of the client’s written/email or verbal instructions must be stored on the client’s paper and electronic file record. 

The level of involvement of the disability 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 disability advocate cannot provide legal advice the disability advocate can support a client, in consultation with the lawyer by:

1. explaining and providing information about the NDIS, Pricing Guides, Operational Guidelines etc,
2. explaining and providing information about the review process, including what is involved in appealing to the AAT.

I.7 Initial client interview

At the initial interview with the client, subsequent to the grant of aid issuing, the lawyer should explain the lawyer’s role, conditions of the grant of legal aid, client’s role, raise relevant legal issues, provide legal advice on how the case will be progressed and address the matters raised in paragraphs 1.2, I.3, I.4, 1.5 & 1.6 as appropriate.

I.7.1   Legal requirements

The lawyer is to:

1. comply with all professional obligations under codes of ethics, regulations or other relevant industry standards,
2. ascertain whether an interpreter is required and utilise interpreters in accordance with the Language Services Policy,
3. 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,
4. 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,
5. consider the legal capacity of the client refer to paragraph I.3,
6. identify any possible conflicts and act according to the Conflicts of Interest Policy,
7. identify all relevant time limits, advise client regarding all relevant time limits and act to secure client’s interests within those time limits,
8. obtain authorities and request copies of all documentation relevant to the matter,
9. explain the legal processes and procedures specific to NDIS matters,
10. obtain a comprehensive account of the legal issues, circumstances surrounding the external review, and the outcomes sought by the client,
11. provide referrals on other relevant and available legal remedies eg social security, consumer law etc.

Subsequent to this interview, the lawyer is to exercise their professional judgment and determine the stage at which the client’s statement of lived experience is prepared.

It is not appropriate for the lawyer to ask a Litigation Support officer to take the statement.

I.7.2 Other requirements and considerations

The lawyer is to be:

1. 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, however be aware and ensure reasonable adjustments are made to accommodate the client’s impairments to enable the client to engage in legal representation,
5. consider a referral to the CJS Social Services Coordinator if the client experiences significant vulnerabilities, special circumstances or is in significant emotional distress.  Refer to Social Support Services Program Guidelines or discuss with Social Services Coordinator if a referral might be appropriate.

I.8 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.

The lawyer must discuss with the client:

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.9 Case conferences

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.

The case conference is not a hearing and no final decision about the external review will be made at the case conference by the Conference Registrar. 

The case conference is part of the AAT’s case management process. 

The case conference provides an informal opportunity for the client and the NDIA to identify the issues in dispute, clarify where there is agreement (if any) and work out what further evidence needs to be obtained.

There must be compliance with any timetable set by the AAT and if changes to timetables set or case conference and other dates need to be adjourned refer to paragraph I.5.

The case conference is conducted by the conference registrar and usually occurs between 2 to 8 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. as appropriate, write to the NDIA and request confirmation they have provided all reasons upon which the internal review decision was based,
2. as required, research decided tribunal cases,
3. discuss with the client:
   1. purpose and procedures relevant to a case conference,
   2. advise case conference process is confidential - what is said cannot be used at the hearing.
   3. as relevant to the individual client’s circumstances. expected standards of conduct and behaviour for case conferences,
   4. relevant legal issues and applicable case law,
   5. the matters raised in the NDIA’s Statement of Issues refer to paragraph g below,
   6. client instructions regarding outcomes to be sought from the case conference, and
   7. any other matters relevant to the client’s case,
4. advise the Tribunal who will be attending the case conference and contact details,
5. ascertain 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,
6. obtain, where possible and appropriate, all relevant evidence (including consideration of requesting summonses) in advance of the case conference and file copies of all evidence in the AAT and serve upon NDIA,
7. approximately 24 hours before the case conference the NDIA lawyer will email the NDIA’s Statement of Issues and this must be reviewed, 
8. 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. 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
   5. ensure that any agreement reached is explained in detail to the client and is fully understood by the client.
9. at the case conference directions will issue for the future conduct of the application including, for example, further evidence to be obtained, timeframe for filing of further evidence, filing of evidence, a conciliation/case conference date/jurisdictional hearing date, direction hearing dates, hearing dates etc.

I.10 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.

The client can ask for a fast-tracked hearing after the case conference and the lawyer must advise the client that fast tracked hearings are only appropriate, 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, are or will be available for fast tracked 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 a.i to a. 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 paragraph I.13.

I.11 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 client 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 in the external review process.

To prepare for a conciliation:

1. as appropriate, write to the NDIA and request confirmation they have provided all reasons upon which the internal review decision was based,
2. as required, research decided tribunal cases,
3. discuss with the client:
   1. purpose and procedures relevant to a conciliation,
   2. advise the conciliation process is confidential,
   3. as relevant to the individual client’s circumstances. expected standards of conduct and behaviour for conciliations,
   4. relevant legal issues and applicable case law,
   5. client instructions regarding outcomes to be sought from conciliation, and
   6. any other matters relevant to the client’s case,
4. ascertain 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 conciliation,
5. obtain, where possible and appropriate, all relevant evidence (including consideration of requesting summonses) in advance of the conciliation and file copies of all evidence in the AAT and serve upon NDIA,
6. during the conciliation 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. 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,
   5. ensure that any agreement reached is explained in detail to the client and is fully understood by the client.
7. If the matter does not settle at the conciliation, directions will issue for the future conduct of the application including, for example, further evidence to be obtained, timeframe for filing of further evidence, filing of evidence, a direction hearing dates, hearing dates etc.

I.12 Agreement reached at case conference, conciliation or through negotiation

If the matter settles, the lawyer is to:

Once agreement has been between the parties arrange for signed agreement to be filed with AAT for consideration and approval.

Once the AAT has approved the order send a copy to the client.

If a new plan is to issue, review the new plan and ensure it implements the agreement and approved order of the AAT.

I.13 Hearing

To prepare for the hearing the lawyer:

1. must 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. discuss with the client:
   1. purpose and procedures relevant to a hearing,
   2. as relevant to the individual client’s circumstances. expected standards of conduct and behaviour for the hearing,
   3. relevant legal issues and applicable case law,
   4. the matters raised in the NDIA’s Statement of Facts Issues and Contentions Issues, and
   5. any other matters relevant to the client’s case,
5. if counsel is briefed ensure:
   1. a grant of aid has been obtained,
   2. the brief is delivered in a timely manner and must include all relevant documentation,
   3. instructions to counsel should set out the appearance dates, the basic premise of the case and list the witnesses to be called, whether client’s outline of submissions needs to be settled and the date for filing,
   4. consideration is given to the appropriateness of conferences with counsel and arrange them as early as practicable with counsel and the client.
   5. the client or parent/guardian/nominee and the disability advocate is notified of the dates and time of any conference with counsel,
   6. counsel is informed of fee payable and the work covered by the grant of aid, and
   7. the invoice for the appearance is forwarded to counsel,
6. ensure all relevant evidence (including issuing of summonses as required), 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,
7. comply with any direction by the AAT to provide a Hearing Certificate,
8. ensure all witnesses are advised in advance of the date and time of the hearing and ensure they are available to give 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
9. 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,
10. 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,
11. take accurate records of the proceedings including witness names and times of hearing,
12. 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 means,
13. 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,
14. ensure all accounts (counsel, expert etc) are finalised in a timely manner.

Once the AAT has delivers the judgement and order, the lawyer is to:

1. send a copy to the client,
2. explain the judgement,
3. as relevant to hearing outcome, advise on prospects of appeals refer to paragraph I.14.

If a new plan is to issue, review the new plan and ensure it implements the agreement and approved order of the AAT.

I.14 Appeals

S44 of the Administrative Appeals tribunal Act 1975 provides:

Appeal on question of law

1. A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

   Also note subsections 44 (7) & (8)

   Federal Court may make findings of fact

7. If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:
   1. the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and
   2. it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:
      1. the extent (if any) to which it is necessary for facts to be found; and
      2. the means by which those facts might be established; and
      3. the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and
      4. the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and
      5. the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and
      6. whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and
      7. such other matters (if any) as the Court considers relevant.
   3. For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may:
      1. have regard to the evidence given in the proceeding before the Tribunal; and
         
      2. receive further evidence.

Following final judgment being delivered by the AAT, write to the client/ parent/guardian/nominee/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 Court and provide advice explaining:

1. that appeals to the Federal Court are on questions of law or procedural fairness 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:

• the Federal Court Act - Federal Court Act of Australia 1976 (Cth) https://www.legislation.gov.au/Series/C2004A01586,
• the Federal Court Rules - Federal Court Rules 2011 (Cth) https://www.legislation.gov.au/Series/F2011L01551,
• the Court’s Practice Notes and in particular the Administrative and Constitutional Law and Human Rights National Practice Note - Administrative and Constitutional Law and Human Rights Practice Note (ACLHR-1) (fedcourt.gov.au)

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

The practice notes cover:

• 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 are also a central practice notes (National Court Framework and Case Management) and general practice notes that are to be followed when conducting matters in the Federal Court.

I.15 Preparation for Federal Court appeals

I.15.1 Appeal to Federal Court

The lawyer must:

1. familiarise themselves with Federal Court Practice Note APP 1: Case management of Full Court appellate matters - https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/app1
2. as, appropriate, assess prospects of an appeal and obtain counsel’s opinion on prospects of appeal,
3. obtain client's instructions to proceed with an appeal to the Federal Court including providing advice on risks of costs,
4. apply for and receive relevant grants of legal aid before acting for client in the Federal Court including aid for counsel’s opinion on prospects of success.
5. file notice of appeal/notice of address for service in the (Federal Court) within relevant time limit,
6. follow directions of the court in a timely manner,
7. Appeals Books must be prepared in accordance with Federal Court practice Note APP2: Content of appeals books - https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/app2 and filed in accordance with any directions issued by the Federal Court,
8. 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,
9. if pleadings (points of claim/statement of claim) are directed by the court, prepare them for settling by counsel,
10. consider whether expert evidence is appropriate, and if so, apply for grant of legal aid and organise report/s,
    1. take affidavits from all relevant witnesses at an appropriate stage,
    2. consider whether a grant of aid should be obtained for counsel to appear at the mediation and apply for it,
11. issue necessary subpoenas, together with conduct monies,
12. 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,
13. liaise with the other parties/their legal representatives as required.

In relation to costs consideration should be given seeking agreement from the NDIA for each party to bear their own costs in circumstances where the appeal is test case litigation.

I.15.2 Brief counsel

The lawyer should retain and brief counsel as soon as practicable.

When briefing counsel:

I.15.3 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/the disability advocate of the dates and time of any conference with counsel.

1.15.4 Alternative dispute resolution and mediation in Federal Court

The lawyer must:

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 client and other party/s for signing and 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).

I.15.5 Federal Court hearing

The lawyer must:

1. apply for and receive relevant grants of aid before acting for the client at a hearing in the Federal Court,
2. follow directions of the Federal Court in a timely manner,
3. inform the client in writing of all directions made by the Federal Court including:
   1. filing dates for evidence and statements and
   2. dates on which they must attend the 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, appeal books and other documents required by the Court 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,
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.15.6 Judgement

Once the Federal Court has delivered the judgement and order, the lawyer is to:

1. send a copy to the client,
2. explain the judgement,
3. as relevant to hearing outcome, advise on prospects of appeal (including risk of costs) and time limits for same.

I.16 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.17 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.

I.18 File closing

The lawyer will complete a checklist and comply with A5 of these civil case management standards.

The lawyer will return original client documents and advise on how long Legal Aid Queensland will store the file.

The lawyer will advise any time limits and referrals which may be relevant at this time. The CJS File Closure standards reflects that files where childhood sexual abuse has been disclosed will not be destroyed for 100 years for the date the abuse is disclosed.

The lawyer will advise the client which documents the client should retain in the event there are further difficulties.

Part J – Acting in appeals to the General Division of the Administrative Appeals Tribunals – Commonwealth Benefits

These case management standards – Acting in external reviews to the General Division of the Administrative Appeals Tribunal Commonwealth Benefits are to be read in conjunction the Australian Solicitors Conduct Rules and (where appropriate) with the case management standards - Civil Law - General (Part A).

J.1 Relevant legislation

Lawyers working in this area should be familiar with the relevant Acts, Regulations, Regulator Guidance, case law and ombudsman guidance in the following areas of practice:

• Social Security Act 1991
• Social Security Administration Act 1999
• Social Security Guide – Guides to Social Policy Law
• A New Tax System (Family Assistance) Act 1999
• A New Tax System (Family Assistance) (Administration) Act 1999
• Family Assistance Guide – Guides to Social Policy Law
• Paid Parental Leave Act 2010
• Farm Household Support Act 2014
• Farm Household Allowance Guidelines
• Student Assistance Act 1973.
• ABSTUDY Policy Manual
• Australian Guide to Government Payments
• Explanatory memorandum for the legislation and rules
• Administrative Appeals Tribunal and Federal Court decisions
• Administrative Appeals Tribunal Act 1975
• Administrative Appeals Tribunal Regulations 1975
• Practice Directions, Guides, Guidelines and policies of the Administrative Appeal Tribunal including Guidelines on Pronunciation of names and forms of address

Specific to disability support pension:

• Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Tables)
• Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the tables) for 2023
• Social Security (Active Participation for Disability Support Pension) Determination 2014

Grant of legal aid - Notifying, Client, AAT and Lawyer for the Secretary of Human Services (Centrelink)

The approving authority of a grant of legal aid is the Grants Division of Legal Aid Queensland (LAQ).

Generally, the date aid is effective is the date the application is received by LAQ.

A grant of legal aid must exist before any work can be done on the file.

If an initial contribution has been imposed by the Grants Division and is payable by the client, work cannot commence until that contribution has been paid.

In all cases the lawyer representing the client is to open the file in accordance with Part A of these Case Management Standards – civil law.

Once the grant of legal aid has issued, the lawyer is to notify the following that legal aid has been granted:

• the client
  • legal aid has been granted,
  • requesting signature of any authorities required
  • confirming the limits of the grant of legal aid,
  • conditions of the grant of legal aid,
  • role of LAQ lawyer, and
  • confirming 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.
• the relevant registry of the Administrative Appeals Tribunal
  • requesting confirmation of any listed conference or hearing dates and any directions made,
  • requesting an adjournment/amended orders/amended directions (if appropriate) whilst legal aid is investigating, and
  • asking that any filed material additional to the T docs is provided in due course.
• Centrelink’s legal representative (“Centrelink”)
  • requesting a copy of the T docs if a client authority is already held.

J.3 Considering the client's legal capacity

The lawyer representing the client must consider the legal capacity of the client and whether there is sufficient capacity to give instructions to continue acting and whether taking a statement will not be productive, relevant or probative to the issues in dispute.

The question of capacity should be revisited throughout the conduct of the matter.

Take appropriate and relevant action as required with reference to:

• the QAI & ADA supported decision making guide – Supported Decision Making Helping people to make their own decisions (A guide for adults and those supporting them)
• the Queensland Handbook for Practitioners on Legal Capacity

I.3.1 Capacity Consideration for client with mental health condition intellectual disability or cognitive impairment

When providing representation to a client who has a mental health condition, intellectual disability or cognitive impairment:

1. the lawyer must assume the client is competent and has the capacity to provide instructions and make informed decisions unless there is evidence to rebut that presumption.
2. client decisions which with hindsight look “bad”, “wrong”, “unpopular” “ignorant” or “eccentric” or “which other people do not agree with” should be distinguished from the capacity of the person who made them and are not necessarily of themselves indicative of a person’s capacity.
3. capacity should not be assessed solely on the basis of a person’s appearance, their age, the manner in which they behave and communicate or any (physical or intellectual) disability or impairment they may have.
4. capacity is time, domain and decision specific, and the lawyer must use their judgement to determine whether the client has capacity to participate in the advice session and provide instructions.
5. consideration must also be given to what practical steps can be taken and what supports can be put in place to enable the client to provide instructions including assistance from a third party,
6. where the client authorises or requests for a third party to provide instructions on their behalf, authority for obtaining instructions from third parties should be obtained from the client and must be kept in the file,
7. where the lawyer holds concerns that the client cannot give instructions the lawyer must then consider:
   1. whether there is substituted decision maker in place as evidenced by:
      • the appointment by a court or Tribunal of the Public Trustee, Public Guardian,
      • appointment of a litigation guardian,
      • a power of attorney or enduring power of attorney that gives a third party power over legal matters (it is important that the validity of these documents and whether their operation has been triggered in considered closely),
      • what supports the client needs to make a decision, including assistance from a third party.
   2. whether representation of the client can proceed.
8. where consideration regarding the client’s capacity to provide instructions has been undertaken by the lawyer, contemporaneous notes of the reasons for the decision to or not to proceed with the representation must be made.

I.3.2 Capacity Consideration for children and young people

When representing a child consideration is to be given as to whether the child can provide instructions and receive advice:

1. there is no legislation in Queensland that sets a specific chronological age for when a child or young person is considered competent to instruct a lawyer,
2. parental/guardianship rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child,
3. consideration may need to be given to any parental responsibility orders made by the Family Court or child safety orders by State Courts as applicable to the client’s individual situation,
4. the capacity of children and young people to provide instructions and make decisions develops and increases over time,
5. lawyers are to assess an individual child or young person’s capacity to instruct a lawyer,
6. assessing capacity involves consideration of the child’s age, maturity and as to whether the child has achieved a sufficient understanding and intelligence to enable them to understand fully what is proposed and make an informed decision,
7. beyond determining capacity to instruct a lawyer, a child or young person’s age and maturity are relevant to the substantive areas of law that affect them,
8. where a parent or guardian is seeking representation for a child regarding external review of a Centrelink decision the age, maturity and disability of the child is to be taken into account. The lawyer is to assess the appropriateness of providing advice to the child, parent and or third party,
9. consideration needs to be given to the nature of the legal advice to be provided and the appropriateness of the child being present for that advice, as it may not be appropriate for a child to be present due to the nature of the material to be discussed. The lawyer must assess this on a case-by-case basis,
10. where consideration regarding the child’s capacity to provide instructions has been undertaken by the lawyer, contemporaneous notes of the reasons for the decision to or not to proceed with the representation must be made.
11. evidence of parental responsibility/guardianship orders and appointments are to be contemporaneously saved to the file record.

Refer to Legal Aid Queensland’s Best Practice Guidelines framework working with children and young people - Best practice guidelines framework Working with children and young people

J.4 Investigation

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

Upon a grant of legal aid issuing the lawyer must:

1. contact the client and obtain initial instructions regarding the case refer to paragraph J.5,
2. obtain a copy of the T documents (if not already available to LAQ),
3. consider what and when any further expert evidence should be obtained including identifying what medical and other expert reports and evidence is required and obtaining same,
4. identify what other evidence is required and obtain same eg. school records, medical records etc.
5. consider whether any vacation/adjournments/extensions should be sought for current listing dates and/or directions,
6. consider whether client should make a new claim (eg. disability support pension) and advise accordingly (the question of a new claim should be revisited throughout the conduct of the matter),
7. ensure that necessary grants of aid are approved before commissioning any expert reports.

Upon concluding the investigation, the lawyer must:

• If there is no merit:
  • advise the client of the outcome of investigation,
  • provide to client available options,
  • assist client to withdraw the AAT application, if appropriate, and as instructed by the client,
  • close file in compliance with the civil law case management standards.
• If there is merit apply for extension of aid for representation including aid for counsel.

J.5 Initial client interview

At the initial interview with the client, subsequent to the grant of aid issuing, the lawyer should explain the lawyer’s role, conditions of the grant of legal aid, client’s role, raise relevant legal issues, provide legal advice on how the case will be progressed and other relevant matters.

J.5.1 Legal requirements

The lawyer is to:

1. comply with all professional obligations under codes of ethics, regulations or other relevant industry standards,
2. ascertain whether an interpreter is required and utilise interpreters in accordance with the Language Services Policy,
3. 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,
4. consider the legal capacity of the client refer to paragraph J.3,
5. identify any possible conflicts and act according to LAQ’s Conflicts of Interest Policy and CJS’s Conflict of Interest Policy
6. identify all relevant time limits, advise client regarding all relevant time limits and act to secure client’s interests within those time limits,
7. obtain authorities and request copies of all documentation relevant to the matter,
8. explain the legal processes and procedures specific to Social Security matters,
9. obtain a comprehensive account of the legal issues, circumstances surrounding the external review, and the outcomes sought by the client,
10. provide referrals on other relevant and available legal remedies eg NDIS, consumer law etc.

Subsequent to this interview, the lawyer is to exercise their professional judgment and determine the stage at which a client’s statement is prepared.

It is not appropriate for the lawyer to ask a Litigation Support officer to take the statement.

J.5.2 Other requirements and considerations

The lawyer is to be:

1. 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, however be aware and ensure reasonable adjustments are made to accommodate the client’s impairments to enable the client to engage in legal representation,
5. for LAQ inhouse lawyers, consider a referral to the CJS Social Services Coordinator if the client experiences significant vulnerabilities, special circumstances or is in significant emotional distress. Refer to Social Support Services Program Guidelines or discuss with Social Services Coordinator if a referral might be appropriate.

J.6 Case conferences

The case conference is not a hearing and no final decision about the external review will be made at the case conference by the Conference Registrar.

The case conference is part of the AAT’s case management process.

A case conference is informal and confidential - what is said cannot be used at the hearing.

Conferences are run by a Tribunal Member or Conference Registrar and the lawyer for Centrelink attends. Conferences are usually by phone.

Conferences concern:

• what is happening with the appeal,
• whether the appeal can be settled or some of the issues resolved,
• timetabling the case to hearing.

The lawyer is to:

• discuss with the client:
  • purpose and procedures relevant to a case conference,
  • advise case conference process is confidential - what is said cannot be used at the hearing.
  • as relevant to the individual client’s circumstances. expected standards of conduct and behaviour for case conferences,
  • relevant legal issues and applicable case law.
• consider whether it is beneficial for the case and or the client for the client to attend the conference.
• advise the client about the purpose of conferences and obtain their informed instructions as to whether they are attending.
• advise the Tribunal as to who is attending any conference and contact details.

If the lawyer is to seek an adjournment, they must do so in advance of the conference and in compliance with the relevant practice direction.

Consider your realistic objectives in attending the conference and prepare accordingly.

Keep a file note of the conference, its outcomes, next steps and any agreements made by the parties.

J.7 Agreement

If the matter settles Centrelink’s representative will draft an agreement.

The lawyer is to:

• review the agreement
• explain the agreement to the client and how it will be implemented
• forward the agreement to the client for them to sign or obtain their written instructions to sign the agreement
• forward the signed agreement to Centrelink or advise acceptance of terms with Centrelink
• once the AAT has approved the order send a copy to the client.

J.8 Hearing

The lawyer must:

• apply for and receive relevant grants of aid before acting for the client at a hearing in the AAT
• manage compliance with directions of the AAT in a timely manner
• inform the client in writing of all directions made by the AAT including:
  • filing dates for evidence and statements, and
  • dates on which they must attend AAT, confirming their need to attend,
• discuss with the client:
  • purpose and procedures relevant to a hearing,
  • as relevant to the individual client’s circumstances. expected standards of conduct and behaviour for the hearing,
  • relevant legal issues and applicable case law,
  • the matters raised in Centrelink’s Statement of Facts Issues and Contentions Issues, and
  • any other matters relevant to the client’s case,
• brief counsel and ensure:
  • a grant of aid has been obtained
  • the brief to counsel includes all relevant documentation
  • instructions to counsel set out the appearance dates, the basic premise of the case, whether client’s SFICs (Statement of Facts, Issues and Contentions) need to be settled and the date for filing,
  • the brief is delivered in a timely manner
  • counsel is informed of the fee payable and the work covered by the grant of aid, and
  • the invoice for the appearance is forwarded to counsel
• ensure all legal arguments (Statement of Facts, Issues and Contentions) and 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,
• comply with any direction by the AAT to provide a Hearing Certificate,
• prepare in consultation with counsel a brief for the Member in accordance with the practice direction,
• ensure all witnesses are advised in advance of the date and time of the hearing and arrangements are made to ensure that they are available for giving evidence,
• if the witness is an expert, ensure:
  • a grant of aid has been obtained and
  • the expert is informed of the fee payable and the work covered by the grant of aid,
• ensure that an outline of submissions is prepared, filed and served in accordance with any directions of the tribunal and, in any case, in advance of the hearing,
• take accurate attendance notes of the proceedings including witness names and times of hearing,
• after the hearing is concluded, meet with the client and explain the outcome of the hearing and, if decision is reserved, the outcome once the decision issues,
• confirm any decision or outcome in writing to the client, provide sealed copies of orders made,
• ensure all accounts (counsel, expert etc) are finalised in a timely manner.

J.9 Appeals

S44 of the Administrative Appeals tribunal Act 1975 provides:

Appeal on question of law

Also note subsections 44 (7) & (8)

Following final judgment being delivered by the AAT, write to the client/parent/guardian/nominee/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 of their options in relation to appeals to the Federal Court and provide advice explaining:

• that appeals to the Federal Court are on questions of law or procedural fairness only
• prospects of success of the appeal
• risk of costs
• relevant time limits, and
• the procedure to apply for a grant of legal aid for representation.

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

• the Federal Court Act - Federal Court Act of Australia 1976 (Cth) https://www.legislation.gov.au/Series/C2004A01586,
• the Federal Court Rules - Federal Court Rules 2011 (Cth) https://www.legislation.gov.au/Series/F2011L01551,
• the Court’s Practice Notes and in particular the Administrative and Constitutional Law and Human Rights National Practice Note - Administrative and Constitutional Law and Human Rights Practice Note (ACLHR-1) (fedcourt.gov.au)

There are no specific practice notes in relation to Social Security appeals beyond decisions from the AAT falling into the practice note above. The practice notes cover:

• 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 are also a central practice notes (National Court Framework and Case Management) and general practice notes that are to be followed when conducting matters in the Federal Court.

JI.10 Preparation for Federal Court appeals

J.10.1 Appeal to Federal Court

The lawyer must:

1. familiarise themselves with Federal Court Practice Note APP 1: Case management of Full Court appellate matters - https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/app1
2. assess prospects of success , as appropriate, obtain counsel’s opinion on prospects of appeal,
3. obtain client's instructions to proceed with an appeal to the Federal Court
4. apply for and receive relevant grants of legal aid before acting for client in the Federal Court including aid for counsel’s opinion on prospects of success,
5. file notice of appeal/notice of address for service in the (Federal Court) within relevant time limit,
6. follow directions of the court in a timely manner,
7. Appeals Books must be prepared in accordance with Federal Court practice Note APP2: Content of appeals books - https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/app2 and filed in accordance with any directions issued by the Federal Court,
8. 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,
9. if pleadings (points of claim/statement of claim) are directed by the court, prepare them for settling by counsel,
10. consider whether expert evidence is appropriate, and if so, apply for grant of legal aid and organise report/s,
11. take affidavits from all relevant witnesses at an appropriate stage,
12. consider whether a grant of aid should be obtained for counsel to appear at the mediation and apply for it,
13. issue necessary subpoenas, together with conduct monies,
14. 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,
15. liaise with the other parties/their legal representatives as required.

J.10.2 Brief counsel

The lawyer should retain and brief counsel as soon as practicable.

When briefing counsel:

1. counsel is to be advised that that a grant of aid has been obtained,
2. the brief is to be delivered in a timely manner and must include all relevant documentation,
3. instructions to counsel should set out the appearance dates, the basic premise of the case and list the witnesses to be called, whether client’s outline of submissions needs to be settled and the date for filing,
4. counsel is informed of fees payable and the work covered by the grant of aid, and
5. the invoice for the appearance is forwarded to counsel.

J.10.3 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/parent/guardian/nominee/the disability advocate of the dates and time of any conference with counsel.

J.10.4 Alternative dispute resolution and mediation in Federal Court

The lawyer must:

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 client and other party/s for signing and 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).

J.10.5 Federal Court hearing

The lawyer must:

1. apply for and receive relevant grants of aid before acting for the client at a hearing in the Federal Court,
2. follow directions of the Federal Court in a timely manner,
3. inform the client in writing of all directions made by the Federal Court including:
   1. filing dates for evidence and statements and
   2. dates on which they must attend the 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, appeal books and other documents required by the Court 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.

J.10.6 Judgement

Once the Federal Court has delivered the judgement and order, the lawyer is to:

1. send a copy to the client,
2. explain the judgement
3. as relevant to hearing outcome, advise on prospects of appeal and time limits for same.

J.11 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.

J.12 Legal Aid Queensland legal costs and grants policy

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

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

J.13 File closing

The lawyer will complete a checklist and comply with A5 of these civil case management standards.

The lawyer will return original client documents and advise on how long Legal Aid Queensland will store the file.

The lawyer will advise any time limits and referrals which may be relevant at this time. The CJS File Closure standards reflects that files where childhood sexual abuse has been disclosed will not be destroyed for 100 years for the date the abuse is disclosed.

The lawyer will advise the client which documents the client should retain in the event there are further difficulties.

Part K – Acting in Consumer Protection Matters

These case management standards – Acting in Consumer Protection Matters - are to be read in conjunction with the Australian Solicitors Conduct Rules (where appropriate) with the case management standards - Civil Law - General (Part A). 

K.1 Relevant legislation and guides

Lawyers working in this area should be familiar with the relevant Acts, Regulations, Regulator Guidance, case law and external dispute resolution scheme guidance in the following areas of practice:

• Time limits and capacity to contract
  • Limitation of Actions Act 1974 (Qld)
  • s 79 of the Judiciary Act 1903 (Cth)
  • s 5(2) Sale of Goods Act 1896 (Qld)
  • Uniform Civil Procedure Rules 1999 (Qld)
  • Australian Securities and Investments Commission Act 2001
  • Banking Code of Practice
  • Customer Owned Banking Code of Practice
  • Mortgage and Finance Association of Australia’s Code of Practice
  • General Insurance Code of Practice
  • Regulator: Australian Securities & Investment Commission
  • EDR Scheme: Australian Financial Complaints Authority
• Door to door sales/unsolicited consumer agreements
  • Competition and Consumer Act 2010 (Cth)
  • Sections 69, 70, 71, 72 of the Australian Consumer Law (ACL)
  • Competition and Consumer Regulations 2010 (Cth), reg 81
  • Do Not Call Register Act 2006 (Cth)
  • Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (Cth)
  • Privacy Act 1988 (Cth)
  • Fair Trading Act 1989 (Qld)
• Energy
  • Customer hardship policy guideline
  • Regulator: Australian Energy Regulator
  • EDR Scheme: Energy & Water Ombudsman Queensland
• Body Corporate
  • Regulator: Office of the Commissioner for Body Corporate and Community Management
• Body Corporate and Community Management (Standard Module) Reg 2020
• Water
  • South East Queensland Water (Restructuring) Act 2007
  • SEQ Water Supply Code
  • EDR Scheme: Energy & Water Ombudsman Queensland
• Tolls
  • EDR Scheme: Tolling Customer Ombudsman
• Consumer Credit:
  • National Consumer Credit Protection Act 2009
  • • National Credit Code (sch 1)
    • National Consumer Credit Protection Regulations 2010
• Banking
  • E-payments Code
  • ABA Accessibility Principles
  • ABA Customer Advocate Guiding Principles
  • ABA Guiding Principles Lenders Mortgage Insurance
  • ABA Industry Guideline Financial Difficulty
  • ABA Family Domestic Violence Guidelines
  • ABA Financial Abuse Industry Guideline
  • ABA Industry Guideline Debt Management Firms
  • ABA Industry Guideline Sale of Unsecured Debt
  • ABA Request for Power of Attorney Guideline
  • Banking Code of Practice.
• ASIC Regulatory Guides
  • ASIC Regulatory Guide 209 – Credit Licensing Responsible Lending Conduct
  • ASIC Regulatory Guide 205 – Credit Licensing general Conduct Obligations
  • ASIC Regulatory Guide 38 – The Hawking Prohibition
  • ASIC Regulatory Guide 96 – Debt Collection Guideline
  • ASIC Regulatory Guide 144 – Mortgage Investment Schemes
  • ASIC Regulatory Guide 160 – Time Sharing Schemes
  • ASIC Regulatory Guide 168 – Disclosure: product Disclosure statements
  • ASIC regulatory Guide 169 – Hawking and Disclosure
  • ASIC Regulatory Guide 220 – Early termination fees for residential loans
  • ASIC Regulatory Guide 221 – Facilitating digital financial services disclosure
  • ASIC Regulatory Guide 267 – Oversight of the Australian Financial Complaints Authority
  • ASIC Regulatory Guide 271 – Internal Dispute resolution
  • ASIC Regulatory Guide 272 – Product Intervention Power
  • ASIC Regulatory Guide 273 – Mortgage Brokers best Interest Duty
  • ASIC Regulatory Guide 274 – Product Design and Distribution Obligations
  • ASIC Regulatory Guide 275 – The deferred sales model for add-on insurance
  • ASIC Regulatory Guide 277 – Consumer remediation
• Australian Financial Complaints Authority (AFCA)
  • AFCA Rules
  • AFCA Operational Guidelines
  • AFCA Approaches
• The 2013 Code of Banking Practice
• Adequacy of statements of advice - May 2022
• Assessing special circumstances
• Awarding interest in insurance
• Calculating loss in financial advice
• Cancellation of instalment contracts
• Cancellation of insurance policies for non-payment of premiums 
• Complaints lodged by guarantors
• COVID-19 travel insurance complaints
• Delayed insurance claims in superannuation - May 2022 
• Excluding complaints - July 2022
• Financial difficulty series - our power to vary credit contracts - May 2022 
• Financial difficulty series - legal principles, industry codes and good industry practice - July 2022
• Financial difficulty series - working together to find solutions
• Financial difficulty series - dealing with common issues
• Financial difficulty series - early release of superannuation - May 2022
• Financial elder abuse
• Fixed interest investments - May 2022
• Identifying a claim - July 2022
• Insurance broker disputes
• Joint accounts and family violence - July 2022 
• Misleading conduct - May 2022
• Mortgagee sales - May 2022
• Motor vehicle insurance claim delays
• Motor vehicle insurance disclosure and ridesharing
• Motor vehicle total loss - July 2023
• Non-disclosure and misrepresentation - Updated July 2020 
• Non-financial loss claims - Updated October 2022 
• Proof of despatch
• Proximate cause of damage
• Insurance Contracts Act Section 47
• Insurance Contracts Act Section 54
• Terms of settlement - Updated November 2021
• AFCA EDR Response Guides
• Add-on insurance EDR Response Guide
• Best practice for AFCA members - submissions to AFCA
• Chargebacks (consumer)
• Claim amount (General Insurance)
• Complainant chargeback
• COVID-19 travel insurance complaints
• Credit enquiries
• Credit listings
• Delay
• Disputed transactions (including remote access)
• Distribution of a superannuation death benefit
• Financial difficulty
• Fraud
• Denial of claim (General Insurance)
• Avoidance of policy (Life Insurance)
• Delay (Life Insurance)
• Denial of claim (Life Insurance)
• Inappropriate advice
• Merchant chargeback
• Misleading representations of conduct
• Mortgagee sale
• Non-disclosure
• Remediation (Life Insurance)
• Scams – authorised transactions
• AFCA Factsheets
• Account closure
• Add-on Insurance
• AFCA’s Approach to Code obligations for credit providers October 2022
• Attending a conciliation conference
• Breaking a fixed rate loan
• Chargebacks
• COVID-19: Breaking a fixed rate loan
• Class actions affecting AFCA complaints
• Debt agreement administrators
• Debt management firms
• Default judgment and financial difficulty
• Family court proceedings
• Home insurance claim delays and COVID-19
• How to make an AFCA complaint - Easy English 
• How we resolve complaints and our Rules
• How AFCA will assess the information you give us
• Income protection benefits in superannuation April 2020
• Independent Assessor
• Insolvent companies
• Insurance complaints about flood claim decisions
• Insurance premium increases
• Managing financial advice
• Mistaken internet payments
• MySuper
• Natural disasters: are you experiencing financial difficulty?
• SMSF complaints
• Systemic issues, serious contraventions and other breaches
• Systemic issues process December 2022
• Telecommunications
  • Australian Communications and Media Authority telco industry codes and standards
  • Communications Alliance
  • Customer and Network fault management
  • Emergency call services requirements
  • Handling of life threatening and unwelcome communications
  • Information on accessibility features for telephone equipment
  • Local and mobile number portability
  • Mobile premium services
  • NBN Access Transfer
  • Priority Assistance for life threatening medical conditions
  • Reducing scam calls and scam sms’s
  • Telecommunications consumer protections
  • Telecommunications (Customer service Guarantee) Standard
  • Telecommunications Consumer Protections Code (TCP Code)
  • Telecommunications (Consumer Protection and Service Standards) 1999 (Cth) (especially see the Universal Service Obligations)
  • Regulator: Australian Communications and Media Authority
  • EDR Scheme: Telecommunications Industry Ombudsman
• Telecommunications Industry Ombudsman Guides
  • Billing and payments
  • Credit Management
  • Customer Service
  • Land and Infrastructure
  • Privacy and Safety
  • Problems with your service
  • Setting up a service
  • Family Violence
• ACCC Guides
  • Buying products and services
  • Problem with a product or service you bought
  • Advertising and promotions
  • Pricing
  • Debt
  • Petrol and fuel
  • Telecommunications and internet
  • Aged and retirement services
  • Energy (including solar)
  • Funeral Services
• Insurance
  • General Insurance Code of Practice.
  • ICA Guide on mental health
  • ICA Guide to helping customers affected by family violence
• Securities
  • Property Law Act 1974 (Qld)
  • Personal Property Securities Act 2009 (Cth)
  • • Personal Property Securities Register
• Bankruptcy:
  • Bankruptcy Act 1966
  • Bankruptcy Regulations 2021, particularly 27-30
  • Regulator: Australian Financial Security Authority
• Debt Collection:
  • Uniform Civil Procedure Rules 1999
  • Section 60(1) Social Security Act 1991
  • Section 116 Bankruptcy Act 1966
  • Debt collection guideline for collectors & creditors
  • Debt Collectors (Field Agents and Collections Agents) Act 2014
  • Centrelink Code of Operations – Recovery of debts from income support payments
  • OAIC - Privacy (Credit Reporting) Code
• Consumer Law:
  • Competition and Consumer Act 2010
  • • The Australian Consumer Law (sch 2)
    • Particularly unsolicited sales, unfair terms, consumer guarantees
    • Competition and Consumer Regulations 2010
    • Regulator: ACCC
• Credit Reporting:
  • Privacy Act 1988
  • • Privacy (Credit Reporting) Code 2014 (Version 2.3)
    • Regulator: Office of Australian Information Commissioner
• Insurance:
  • Insurance Contracts Act 1984 (Cth)
  • • General Insurance Code of Practice 2020 (updated 1 October 2023)
• Cars
  • Motor Dealers and Chattel Auctioneers Act 2014
  • Section 50A Fair Trading Act 1989 (lemon law)
  • Queensland Civil and Administrative Tribunal Act 2009
  • Regulator: Office of Fair Trading
  • • Make a Consumer Complaint
  • QCAT: Motor vehicle disputes
• Training
  • Regulator: Australian Skills Quality Authority
  • EDR Scheme: VET Student Loans Ombudsman
  • Queensland Training Ombudsman
• Gym
  • Fair Trading (Code of Practice-Fitness Industry) Regulation 2003
• Solar Panels
  • Solar Retailer code of conduct
  • Regulator: ACCC and see Clean Energy Regulator
• Holiday credits/timeshare
  • Australian Securities and Investments Commission Act 2001
  • ATHOC Code of Practice
• Dating agencies
  • Introduction Agents Act 2001 (Qld)
• Utilities:
  • Rates
  • • Local Government Act 2009
    • Local Government Regulation 2012

K.1 Grant of legal aid

The approving authority of a grant of legal aid is the Grants Division of Legal Aid Queensland (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.

If an initial contribution has been imposed by the Grants Division and is payable by the client, work cannot commence until that contribution has been paid.

In all cases the lawyer representing the client is to open the file in accordance with Part A of these Case Management Standards – civil law.

The lawyer should obtain the client’s authority, request any documents in the client’s possession and advise the scope of the retainer.

The lawyer is to write to the client confirming:

• legal aid has been granted,
• seek that the client sign necessary authorities,
• the limits and scope of the grant of legal aid,
• conditions of the grant of legal aid,
• role of LAQ lawyer, 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 and 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.

If court proceedings are threatened or on foot, the lawyer will advise the client or take steps to protect the client’s interests by:

• obtaining written advice from the other party that it will not take further action pending investigation outcome; or
• lodge a complaint with the relevant external dispute resolution (EDR) scheme.

The lawyer will ensure that each grant of aid to progress the matter is obtained as necessary.

The lawyer is to consider a referral to the CJS Social Services Coordinator if the client experiences significant vulnerabilities, special circumstances or is in significant emotional distress. Refer to Social Support Services Program Guidelines or discuss with Social Services Coordinator if a referral might be appropriate.

K.2 Investigation

Upon receipt of the client’s signed authority, the lawyer will apply to the other party pursuant to the Privacy Act or National Credit Code (or other relevant legislation) for a copy of all documents relevant to the dispute.

The lawyer will analyse documents received to identify breaches of the relevant law and codes of practice and to develop a strategy for the matter.

Lawyers will take a preliminary view as to causes of action and obtain any third-party documents or apply for a grant of aid for expert reports as necessary.

The lawyer will determine whether there is merit and is suitable for internal dispute resolution or whether it is appropriate to lodge a dispute in an EDR scheme.

Upon concluding the investigation:

• If there is merit – the lawyer must develop a case strategy and form an opinion as to the appropriate next steps. The next steps could include:
  • Writing a formal letter of demand to the other party.
  • Requesting further documents from the other party.
  • Starting EDR Proceedings - refer to paragraph K.5.
  • Starting an action in QCAT or Court – refer to paragraph K.6.
• If there is no merit – the lawyer must:
  • advise the client of the:
    • outcome of investigation,
    • next options available to client, if any,
    • provide appropriate referrals (such as financial counselling),
  • assist client with a settlement offer, if appropriate,
  • notify the Grants Division of merit determination, and
  • close file in compliance with the civil law case management standards and K. 10 below.

K.2.1 Complaint to a Regulator

In circumstances where this advice has not previously been provided to or actioned by the client, the lawyer will assess and advise the client as to whether a referral to a regulator is appropriate.

If a referral is appropriate, the lawyer will identify which regulator is appropriate in relation to the complaint.

The lawyer will advise the client of the advantages and disadvantages of lodging a complaint with a regulator before the complaint is made.

In particular, the lawyer will explain the likelihood of the complaint directly benefitting the client before making the complaint.

The complaint will be made in a timely manner and with confirmed written instructions from the client.

The complaint will contain sufficient information to enable the regulator to determine whether an investigation should ensue and the nature of any breaches of legislation.

Work associated with lodging a regulator complaint on behalf of the client is to be undertaken as part of the substantive grant of legal aid. No additional grants are required.

K.3 Statement

The lawyer will determine whether a statement from the client or any other party is necessary and if so, obtain the statement and ensure the client/third party has had the opportunity to review, correct and adopt the statement by:

• where the person is literate - obtaining the person’s email acceptance of the statement after opportunity to read and correct it or obtaining the person’s signature to the statement.
• where the person has limited literacy - reading the statement to the person, recording file notes supporting this and, having afforded the client the opportunity to correct it, detailing the client’s amendments to the statement and acceptance of the statement.
• where the person is from a culturally or linguistically diverse background and needs assistance from an interpreter – sending the statement to the client and reading through the statement with them using an appropriately qualified interpreter.

It is not appropriate for the lawyer to ask a litigation support officer to take the statement.

K.4 Internal dispute resolution (IDR)

The lawyer will advise the client whether an IDR complaint is necessary to advance the resolution of the dispute having regard to:

• the developed case strategy referred to in paragraph K.2,
• the urgency of the matter,
• whether lodgement with an EDR scheme is necessary to stop further court proceedings or preserve an ‘at risk’ asset,
• whether lodgement with an EDR scheme is necessary to protect the legal rights or legal position of the client, and
• the necessity to comply with EDR scheme rules by exhausting IDR first unless exempted.

The lawyer will make an IDR complaint by:

1. obtaining the client’s informed instructions regarding the IDR complaint,
2. considering if a chronology should be prepared in anticipation of further dispute (It is not appropriate for the lawyer to ask a Litigation Support officer to prepare the chronology),
3. identifying required documents,
4. ensuring that the client is requested and provides further identified documents,
5. preparing a list of documents as required,
6. identifying the client loss and identifying and obtaining the evidence required to show the loss,
7. drawing a complaint sufficient to identify the grounds of the complaint, providing all relevant evidence and proposing a solution,
8. identifying the appropriate contact person, their role description and address (usually found on the EDR scheme website) for the IDR complaint,
9. communicating any response from the other party to the client as soon as practicable,
10. provide advice and options to the client to settle or advance the dispute.

The other party will provide an IDR response. This response will either:

1. Allow the complaint – The lawyer must:
   1. review and consider the reasonableness of the other party’s response,
   2. forward the response to the client,
   3. provide advice regarding the response and, as appropriate, advice on progressing the matter to EDR,
   4. obtain the client’s instructions as to whether to accept or reject the proposed resolution, and
   5. communicate the client’s instructions to the other party.
2. Partially allow the complaint - The lawyer must:
   1. review and consider the reasonableness of the other party’s response,
   2. forward the response to the client,
   3. provide advice regarding the response and, as appropriate, advice on progressing the matter to EDR,
   4. obtain the client’s instructions as to whether to accept or reject the proposed resolution, and
   5. communicate the client’s instructions to the other party.
3. The complaint is refused. The lawyer must:
   1. review and consider the reasonableness of the other party’s response,
   2. forward the response to the client,
   3. provide advice regarding the response and, as appropriate, advice on progressing the matter to EDR,
   4. obtain the client’s instructions as to whether to progress the matter to EDR, and
   5. communicate the client’s instructions to the other party.

A complaint should not be made to EDR unless there are reasonable prospects of a better outcome being achieved. If advising the client to progress to EDR refer to paragraph K.5.

K.5 External dispute resolution (EDR)

K.5.1 Progressing to EDR

The lawyer will determine the optimal forum for any dispute and lodge a dispute with an EDR scheme upon the client’s authorisation (for some EDR schemes this may include filing out the scheme’s Agent Authority form) and in accordance with the terms of reference, rules or procedures in place with the relevant EDR scheme. (EDR)

The lawyer will:

• explain to the client:
• • the developed case strategy (referred to in paragraph K.2) relating to the dispute with the respondent,
  • the EDR process,
  • relative merits of accessing the EDR scheme as opposed to court proceedings (including risk of costs associated with court action),
  • inform the client of the realistic range of outcomes possible through the EDR process,
  • ensure the client is informed of the need to proceed to surrender or sell assets, keep up with loan repayments or otherwise preserve their best interests pending outcome of the dispute; and
• in accordance with a developed case strategy, provide necessary information to the EDR scheme having regard to relevant statue, caselaw, codes of conduct and guidance from the scheme as to a fair outcome for the matter; and
• utilise chronologies, statements, lists of documents etc as aids to advocate the client’s position, if deemed useful.

Where submissions have been received from the respondent, the lawyer will:

• review the submissions,
• advise the client in relation to issues raised in the respondent’s submissions; and
• advise client about possible outcomes and revised prospects, as relevant,
• consider whether submissions in response are appropriate having regard to whether they are necessary to clarify or further explain facts and/or issues in dispute.

If further submissions are made, the lawyer is to provide a copy to the client and/or if required (because of new factual material) obtain written instructions prior to submitting.

K.5.2 Conciliation conference

An EDR scheme may require a conciliation conference and the lawyer should give consideration to whether there are any reasons that would make a conciliation conference inappropriate in the circumstances of each individual case (ie given the client’s vulnerability – see Language Services Policy) and respond to such request in accordance with the client’s instructions.

The following action is required to be taken by the lawyer to prepare for a conciliation conference:

• research relevant legislation, decided cases and published EDR guidances,
• prior to the conference, advise the client regarding:
  • the conference procedure,
  • confidentiality provisions,
  • possible outcomes and remedies including any monetary and non-monetary outcomes to be sought by the client,
  • any other matters relevant to their case,
• obtain the client’s instructions in writing,
• during the conference, ensure the client has an opportunity to be heard and their issues addressed,
• use private meetings with the client to reality test proposed offers and to ensure the client is freely proposing and/or accepting any concessions and or settlement offers,
• ensure any settlement reached is viable, sustainable and appropriate.

Following the conference, if an agreement is reached by the parties, the lawyer should write a letter to the client confirming the agreement and facilitate acceptance of the agreement and finalise file refer to paragraph K.6.

Following the conference, where no agreement is reached, advise the client in writing of further EDR process (Recommendation, Determination), and the client’s and the respondent’s options in relation to accepting the Recommendation or Determination or alternate actions.

K.5.4 EDR process - Recommendation

Where the matter proceeds to a Recommendation (also known as a Preliminary view) by the relevant EDR scheme, the lawyer should:

1. advise the client of:
   1. the relevant EDR recommendation process,
   2. the client’s options regarding a decision to accept or reject the recommendation,
   3. the respondent’s options in relation to accepting or rejecting the recommendation.
2. where further submissions or information is sought for the purposes of the recommendation, or the client has the opportunity to respond to matters raised by the respondent, the lawyer should:
   1. consider whether further submissions or information are necessary or desirable to clarify the issues in dispute,
   2. draft any further submissions, obtaining further instructions where necessary,
   3. obtain the client’s written instructions to submit the further submissions along with any additional supporting documentation or material.
3. once the recommendation is received, the lawyer should:
   1. review and consider the recommendation and make an assessment as to the merits or otherwise of the recommendation,
   2. write to the client:
      1. provide a copy of the recommendation,
      2. provide advice in relation to merits of the recommendation and whether to accept or reject the recommendation,
      3. the relevant time limits for accepting or rejecting the recommendation, and
      4. obtain the client’s written instructions regarding whether to accept or reject the recommendation,
   3. communicate to the EDR Scheme the client’s:
      1. acceptance of the recommendation to the EDR Scheme in writing, or
      2. rejection of the recommendation to the EDR Scheme in writing.
   4. If the client has accepted the recommendation, advise the client that their Legal Aid matter is at an end. Close the file in accordance with paragraph K.6.
   5. If the client has rejected the recommendation advise the client, that the matter now proceeds to an EDR determination.

K.5.4 EDR process - Determination

Upon a recommendation being rejected by the client or the other party, the complaint will automatically be referred for an EDR determination.

Where the matter proceeds to a Determination by the relevant EDR scheme, the lawyer should:

1. advise the client of:
   1. the relevant EDR determination process,
   2. possible outcomes and prospects with the client,
   3. options in relation to accepting or rejecting the determination and further legal options (including QCAT and court proceedings),
   4. about the respondent’s options in relation to accepting or rejecting the determination,
2. where further submissions or information is sought for the purposes of the determination, or the client has the opportunity to respond to matters raised by the respondent, the lawyer should:
   1. consider whether further submissions or information are necessary or desirable to clarify the issues in dispute.
   2. draft any further submissions, obtaining further instructions where necessary.
   3. obtain the client’s written instructions to submit the further submissions along with any additional supporting documentation or material.
3. once the determination is received, the lawyer should:
   1. review and consider the determination and make an assessment as to the merits or otherwise of the determination,
   2. write to the client:
      1. provide a copy of the determination,
      2. provide advice in relation to merits of the determination and whether to accept or reject the determination,
      3. the relevant time limits for accepting or rejecting the determination, and
      4. obtain the client’s written instructions regarding whether to accept or reject the determination,
      5. communicate the client’s acceptance or rejection of the determination to the EDR scheme in writing, and
   3. If the client has accepted the determination advise the client, the client’s Legal Aid matter is at an end. Close the file in accordance with paragraph K.6.
   4. If the client has rejected the determination the lawyer is to;
      1. advise the client,
      2. write to the client and confirm further legal options (including QCAT and court proceedings), and
      3. advise of relevant time limits.

Where the client rejects the EDR determination a further grant of Aid is be required to take the matter to QCAT or Court. The lawyer must in accordance with the client’s instructions apply for further relevant grants of legal aid and submit necessary merit assessments to the Grants Division.

K.6 Commencing or responding to court action

Most consumer protection matters will not progress to court action as EDR is available even post judgment.

However, matters that might proceed to court action include:

• where the EDR complaints process has been exhausted,
• where the matter is post judgement and EDR is not an option,
• where the lender is attempting to circumvent consumer lending laws,
• where the creditor is not a member of an EDR scheme, eg council.

For appropriate matters and before commencing or responding to court action, a grant of aid to investigate prospects and obtain counsel’s opinion (including recommendations as to the appropriate court action to be undertaken) should be obtained.

Before applying for a grant to investigate prospects of success and counsel’s opinion, the lawyer must consider:

• whether the creditor is a member of an EDR scheme,
• whether the clients matter falls within the jurisdiction of the EDR scheme,
• whether it is appropriate to advise the client to make a complaint to the EDR scheme.

If matter falls within jurisdiction of an EDR scheme and it is appropriate to make the referral, then refer to K5.1 Progressing to EDR. Lawyers should advise clients how making the complaint to EDR informally stays any court proceedings commenced by the other party.

If referral to an EDR scheme is not appropriate, then advice regarding commencing or responding to court action is to be given to the client and a grant of aid for counsel’s opinion be obtained.

Please note:

• If a company is a member of AFCA, they are required to cease enforcement action (including taking a further step in court proceedings) other than to the extent necessary to protect the financial firm’s legal rights.
• Failure to cease enforcement action is a breach of AFCA’s rules and operational guidelines (A.7 Restrictions on Financial firms during a complaint) which could be a ground for expulsion from AFCA for the member. Most members of AFCA require a licence to provide financial services. It is a condition of their licence that they must be a member of an approved EDR scheme so it is very unlikely that they would proceed with enforcement action whilst a complaint is being considered in AFCA.
• Other EDR schemes such as the Telecommunications Industry Ombudsman and the Energy and Water Ombudsman Queensland have similar provisions which should be checked before providing advice.

K.7 Close file

The lawyer will complete a checklist and comply with A.5 of these civil case management standards.

The lawyer will return original client documents and advise on how long Legal Aid Queensland will store the file.

The lawyer will advise any time limits and referrals which may be relevant at this time. The CJS File Closure standards reflects that files where childhood sexual abuse has been disclosed will not be destroyed for 100 years for the date the abuse is disclosed.

Part L – Farm and Rural Legal Service

These case management standards – Farm & Rural Legal Service (FRLS) - are to be read in conjunction (where appropriate) with the case management standards - Civil Law - General (Part A) and the Australian Solicitors Conduct Rules.

L.1 Relevant legislation

Lawyers working in this area should be familiar with the relevant Acts, Regulations, Regulator Guidance, case law and ombudsman guidance in the following areas of practice:

• Farm Debt Mediation
  • Farm Business Debt Mediation Act 2017
  • Farm Business Debt Mediation Regulation 2017 (Qld)
• Queensland Rural and Industry Development Authority (QRIDA):
  • Mediation Information pack
  • Good faith Information
  • Guidelines for Conducting Mediations
  • Service of Documents Factsheet
  • Definitions for Farm Business Debt Mediation
  • QRIDA video regarding farm business debt mediations https://youtube.com/watch?v=jX2SV1yeIRM&si=gE5JG86ZGYI8oDfT
• Time limits and capacity to contract
  • Limitation of Actions Act 1974(Qld)
  • Australian Securities and Investments Commission Act 2001 (Cth)
  • General Insurance Code of Practice
• Credit:
  • National Consumer Protection Act 2009 
    • National Credit Code (sch 1)
    • National Consumer Credit Protection Regulations 2010
  • Australian Securities and Investments Commission Act 2001
  • Corporations Act 2001
  • ASIC Regulatory Guides
    • ASIC Regulatory Guide 209 – Credit Licensing: Responsible Lending Conduct
    • ASIC Regulatory Guide 205 – Credit Licensing: General Conduct Obligations
    • ASIC Regulatory Guide 96 – Debt Collection Guideline: For collectors and creditors
    • ASIC Regulatory Guide 144 – Mortgage Investment Schemes
    • ASIC Regulatory Guide 168 – Disclosure: Product Disclosure statements
    • ASIC Regulatory Guide 220 – Early termination fees for residential loans: Unconscionable fees and unfair contract terms
    • ASIC Regulatory Guide 221 – Facilitating digital financial services disclosure
    • ASIC Regulatory Guide 267 – Oversight of the Australian Financial Complaints Authority
    • ASIC Regulatory Guide 271 – Internal Dispute resolution
    • ASIC Regulatory Guide 272 – Product Intervention Power
    • ASIC Regulatory Guide 273 – Mortgage Brokers: Best Interests Duty
    • ASIC Regulatory Guide 274 – Product Design and Distribution Obligations
    • ASIC Regulatory Guide 277 – Consumer remediation
  • Banking Code of Practice
  • Customer Owned Banking Code of Practice
  • Mortgage and Finance Association of Australia’s Code of Practice
  • Regulator: Australian Securities & Investment Commission
• Australian Financial Complaints Authority:
  • Credit (Rural Finance) Act 1996
• Australian Financial Complaints Authority (AFCA)
  • AFCA Rules
  • AFCA Operational Guidelines
  • AFCA Approaches
    • The 2013 Code of Banking Practice (applies to mortgages from 2013 to 2019)
    • Assessing special circumstances 
    • Calculating loss in financial advice 
    • Cancellation of instalment contracts 
    • Cancellation of insurance policies for non-payment of premiums 
    • Complaints lodged by guarantors 
    • Delayed insurance claims in superannuation - May 2022 
    • Excluding complaints - July 2022
    • Financial difficulty series - our power to vary credit contracts - May 2022 
    • Financial difficulty series - legal principles, industry codes and good industry practice - July 2022
    • Financial difficulty series - working together to find solutions 
    • Financial difficulty series - dealing with common issues 
    • Financial difficulty series - early release of superannuation - May 2022
    • Financial elder abuse 
    • Fixed interest investments - May 2022
    • Identifying a claim - July 2022
    • Insurance broker disputes 
    • Joint accounts and family violence - July 2022 Lending to Small Business – January 2024
    • Misleading conduct - May 2022
    • Mortgagee sales - May 2022
    • Non-disclosure and misrepresentation - Updated July 2020 
    • Non-financial loss claims - Updated October 2022 
    • Insurance Contracts Act Section 47 
    • Insurance Contracts Act Section 54 
    • Terms of settlement - Updated November 2021 
  • AFCA EDR Response Guides
    • Best practice for AFCA members - submissions to AFCA Chargebacks (consumer)
    • Claim amount (General Insurance)
    • Complainant chargeback
    • Credit enquiries
    • Credit listings 
    • Delay
    • Disputed transactions (including remote access)
    • Distribution of a superannuation death benefit
    • Financial difficulty
    • Fraud
    • Denial of claim (General Insurance)
    • Avoidance of policy (Life Insurance)
    • Delay (Life Insurance) 
    • Denial of claim (Life Insurance)
    • Inappropriate advice
    • Misleading representations of conduct
    • Mortgagee sale
    • Non-disclosure
    • Remediation (Life Insurance)
    • Scams – authorised transactions
  • AFCA Factsheets
    • Account closure
    • AFCA’s Approach to Code obligations for credit providers October 2022
    • Attending a conciliation conference
    • Breaking a fixed rate loan
    • Chargebacks
    • Debt agreement administrators
    • Debt management firms
    • Default judgment and financial difficulty
    • Family court proceedings
    • How to make an AFCA complaint - Easy English
    • How we resolve complaints and our Rules
    • How AFCA will assess the information you give us
    • Independent Assessor
    • Insolvent companies
    • Insurance complaints about flood claim decisions
    • Insurance premium increases
    • Managing financial advice
    • Mistaken internet payments
    • MySuper
    • Natural disasters: are you experiencing financial difficulty?
    • SMSF complaints
    • Systemic issues, serious contraventions and other breaches
    • Systemic issues process December 2022
• Banking
  • E-payments Code
  • ABA Accessibility Principles
  • ABA Customer Advocate Guiding Principles
  • ABA Guiding Principles Lenders Mortgage Insurance
  • ABA Industry Guideline Financial Difficulty
  • ABA Family Domestic Violence Guidelines
  • ABA Financial Abuse Industry Guideline
  • ABA Industry Guideline Debt Management Firms
  • ABA Industry Guideline Sale of Unsecured Debt
  • ABA Request for Power of Attorney Guideline
  • Banking Code of Practice
  • APRA Prudential and Reporting Standards for Authorised deposit-taking institutions
    • Prudential Standard APS 220 Credit quality
    • Prudential Standard CPS 220 Risk management  (see also Prudential Practice Guide -  Risk Management)  
• Securities
  • Property Law Act 2023 (Qld)
  • Personal Property Securities Act 2009
  • Personal Property Securities Register
• Bankruptcy:
  • Bankruptcy Act 1966 (Cth)
  • Bankruptcy Regulations 1996 (Cth), particularly 6.03
  • Regulator: Australian Financial Security Authority
• Credit Reporting:
  • Privacy Act 1988
    • Privacy (Credit Reporting) Code 2014
    • Regulator: Australian Information Commissioner
• Insurance:
  • Insurance Contracts Act 1984 (Cth)
  • General Insurance Code of Practice 2020
  • ICA Guide on mental health 
  • ICA Guide to helping customers affected by family violence

FRLS Lawyers should also be aware of the relevant legislation, rules, guidelines and principles contained in the Consumer Law Case Management Standards so referrals to CJS’s Consumer Law unit can be made, as appropriate.

FRLS Lawyers should also be aware of the following so referrals to CJS’s Social Security Appeals Unit can be made, as appropriate:

• Farm Household Support Act 2014
• Farm Household Allowance Guidelines

L.2 Early intervention

Early intervention, before commencement of the farm business debt mediation process under the Queensland Farm Business Debt Mediation Act 2017 (FBDMA), is regarded as the best approach for developing strategies and options to enable clients to:

• negotiate with creditors,
• trade out,
• adjust/sell assets,

before the threat of enforcement is upon them.

This is to be considered and discussed with clients who are in the pre-FBDMA notice stage.

It should be noted that some creditors will offer the client the option to:

• engage in an informal farm debt mediation, outside of the FBDMA process, or
• refer the matter to AFCA.

The benefit of proceeding in this way, is that enforcement action cannot be triggered under the FBDMA and preserves the right of the client to proceed with the formal mediation process under the FBDMA if the informal process is unsuccessful. This applies even if, as a result of the informal process, a Deed of Agreement is entered into between the parties and is subsequently breached. The client can still elect to proceed with a formal farm debt mediation under the FBDMA.

It is noted that this is the preferred model from the client’s perspective and is currently being followed by the ANZ Bank and increasingly is being looked at favourably as an option by other creditors.

L.3 Farm Business Debt Mediation Process under the FBDMA

FRLS Lawyers should be familiar with the farm mediation debt process and its forms under the FBDMA, which is as follows:

1. The creditor serves the client with a Notice S14 Enforcement Action along with a Mediation Information Package and with a copy to QRIDA.
2. The client must respond within 20 business days by giving a Notice S15 Request for Mediation to the creditor that also includes their nomination of three mediators in preferred order and a request for copies of documents. The client also has the right to decline mediation.
   Lawyers should be aware that the QRIDA s15 Notice contains a box which is to be ticked to alert the Creditor to provide copies of documents. Should this box not be ticked by the client, the Lawyer should immediately request the documents from the creditor.
3. Alternatively, the client can issue and serve on the creditor giving a Notice S15 Request for Mediation.
4. The creditor can accept the request for mediation by giving a Notice S16 Agreement or Refusal to Mediate within 15 business days.
5. The client is required under s22 of the FBDMA to provide documents within 30 business days. The documents, listed in the s16 Notice, to be provided by the client are:
   • most recent taxation return prepared for lodgement with the Australian Taxation Office; and
   • assets and liabilities; and
   • cash flow projections for a period of at least one year.
   The client must comply with the s16 Notice at their own cost.
   A client’s failure to comply or to make reasonable efforts to comply with this section, is taken to have failed to take part in the mediation in good faith.
6. The parties should agree on a mediator who arranges for the completion of a Form 8 Mediator Appointment (not necessarily the form provided by QRIDA).
7. The mediator also reviews the overall matter and may suggest a pre-mediation conference.
8. The mediator facilitates a pre-mediation conference and finalises arrangements for mediation.
9. Mediation will be conducted on an agreed day, time and venue that is reasonably convenient to the client. It will be conducted with as little formality, technicality, and as quickly as possible.
10. If agreement is reached, a Form 1 Heads of Agreement is prepared or supervised by the mediator and signed by both parties with a Form 2 Summary of Mediation completed and signed by all parties and forwarded to QRIDA.

FRLS Lawyers should also be familiar with the following:

• The client and the creditor have the responsibility to notify QRIDA if there is a change of mediator using the Notice S18B Change of Mediator
• The client can discontinue mediation by giving a Notice S32 Discontinuing Mediation
• The client can decline mediation by giving a Notice S53 Declining Mediation
• The client can revoke a heads of agreement by giving a Notice S29 Revoking Heads of Agreement
• Client can make an application for Form 3 Enforcement Action Suspension Certificate if the creditor has failed to mediate or mediate in good faith.

L.4 The Farm Business Debt Mediation Process under the FBDMA

The following is the farm business debt mediation flowchart (available from the (QRIDA website – refer to Mediation Information Package):

L.5 Initial legal advice

The first contact with a client is often via a referral from a rural financial counsellor (RFC) and may be conducted as a legal advice telephone interview or in person.

This will often occur before the client has applied for a grant of legal aid for representation.

The legal advice must be entered into LAQOffice as an advice in accordance with LAQ’s Legal Advice Policy and CJS’s Advice Standards Manual.

The initial advice will also be the opportunity for the lawyer to identify any conflicts of interest and any other parties with interests at risk (eg. Guarantors, etc) and assess whether identified conflicts of interest and risks can be managed. Refer to paragraph L.6.

Regardless of whether the initial client advice session occurs before or after the issuing of a grant of legal aid, the lawyer is to:

1. explain that the FRLS assists farmers and rural based businesses experiencing or about to experience severe financial hardship.
2. explain that to be eligible for the service the debt must relate to primary production in Queensland.
3. Explain that the mediation work undertaken will be under the provisions of the Queensland Farm Business Debt Mediation Act 2017 (FBDMA), or any legislation enacted in its place and will also take into account the Code of Banking Practice, AFCA inappropriate lending guidelines and other relevant legislation.
4. If the client is not already connected to a Rural Financial Counselling Service (RFCS) refer to - Rural Financial Counselling Service (RFCS) Southern Queensland (RFCSSQ) or Rural Financial Counselling Services (RFCS) North Queensland RFCSNQ.
5. Explain the FBDMA mediation process and procedure and how the FRLS and RFCS will work together.
6. Explain the options and impacts of declining to participate in the mediation process.
7. Explain the limits of advice and representation available through the FRLS including the areas of law in which FRLS does not practice (eg conveyancing, wills and estates, chasing non-payment of debts owed) and make appropriate referrals (should be to three practitioners in each area of expertise),
8. If the client has not yet applied for a grant of legal aid, provide information on how to apply for a grant of legal and provide LAQ application form (please use legal aid application form specifically adapted for FRLS),
9. Confirm grants of legal aid are available for the farm debt matters for negotiations, meetings, informal mediation and mediation under the FBDMA etc.
10. Explain no grants of legal aid are available to commence and be represented in court proceedings.
11. Advise client of obligation to pay for mediator under the FBDMA and the likely costs to the client of mediation and mediator.
12. Obtain information about the client’s matter including but not limited to:
    1. whether the client is a borrower or guarantor,
    2. borrowing/trading structures used by the client/business,
    3. implications of the borrowing/trading structures,
    4. who is the creditor and determine whether the creditor is:
       1. a member of AFCA,
       2. a holder of a financial services license requiring it to engage in external dispute resolution (EDR),
       3. required to offer farm debt mediation under the FBDMA.
13. Determine and advise as applicable:
    1. FBDMA notices have not issued
       Advise the client, as appropriate, in relation to:
       1. negotiating outcomes with mortgagees/creditors (including creditors are not obligated to offer farm debt mediations or EDR) via meetings and correspondence,
       2. alternate legal options are available including complaints to AFCA (advising on how to make a complaint to AFCA as appropriate),
       3. appropriate referrals to other professionals including private legal practitioners for legal advice on proceeding with court action (including likely timeframes for court action, risk of costs etc),
       4. proceeding with a farm debt mediation under the FBDMA.
    2. FBDMA notices have issued
       Advise the client, as appropriate, in relation to:
       1. time limits under the FBDMA,
       2. applicable obligations of the creditor/client for a creditor or client-initiated mediation and,
       3. the documents issued or required to be issued under the FBDMA,
       4. the FBDMA mediation process, and
       5. assistance that can be provided by FRLS.
14. Documentation to be obtained:
    1. Client documents:
       Advise the client that the documents to be produced by the client to LAQ include:
       1. all notices from the creditor regarding the payment, or non-payment, of the debt;
       2. copies of letters of offer and variations of the facilities;
       3. the client’s most recent statement of financial position – assets & liabilities for each entity relevant to the debts being discussed;
       4. copies of taxation returns for each borrowing entity and personal tax returns, balance sheets, profit and loss statements for each entity for up to the last five years;
       5. most recent ATO portal statements;
       6. copies of cash flows, budgets and projections prepared by any purpose including loan applications or supplied to the creditor at any stage throughout the financial relationship;
       7. copies of security documents (including mortgages, finance agreements, leases [land, equipment, livestock], guarantees, crop liens, stock mortgages etc);
       8. loan application forms and accompanying documents;
       9. any correspondence with or from the creditor; and,
       10. any valuations the client may have, and
       11. any other documentation relevant to the debt.
       Advice is also to be provided to the client regarding disclosure of documents to the creditor.
    2. Creditor documents
       s21(4) of the FBDMA provides that the creditor must provide the following documentation relating to:
       1. the client’s application for the farm business debt and farm mortgage, and any variation of the debt or mortgage; and
       2. the contractual relationship between the client and the creditor, including any loan or mortgage documents; and
       3. correspondence between the client and the creditor about changes to the farm business debt or the farm mortgage; and
       4. the client’s default under the farm mortgage and any action taken by the creditor in relation to the default; and
       5. any other matter prescribed by regulation.
       Should the lawyer consider that other documentation from the creditor will assist in the matter the lawyer should attempt to seek that documentation from the creditor.
       NOTE: That if the client completed and returned a s15 Notice under the FBDMA to the creditor and QRIDA before the FRLS become involved it is important to check the notice to ensure that the client has ticked the box requesting the provision s21 of the FBDMA documents. If the client has not requested these documents the lawyer must make the request.
15. Explain the obligations and options AFTER participating in the FDBMA mediation process. This includes advice that FRLS assists clients in the post mediation process while the client remains indebted to the creditor.

L.6 Conflict of interest

It is the expectation that lawyers with comply with Australian Solicitors Conduct Rules, LAQ’s Conflict of Interest Policy and CJS’s Conflict of interest policy.

It is the expectation that lawyers be alert to conflict interest and take appropriate action in the event a conflict of interest or potential conflict of interest is identified.

It is the responsibility of the lawyer to:

• identify and analyse whether the facts of the client’s matter disclose actual/perceived conflict of interest, and
• identify if steps can be taken to manage the conflict of interest, or
• identify circumstances where the conflict of interest cannot be managed, and
• ensure they act in the client’s best interest.

Management of conflict of interest can involve different options, depending on the circumstances, including:

• making appropriate and frank disclosures,
• obtaining informed consent,
• ensuring information barriers are in place,
• referring the client to a private lawyer.

Informed consent can only be obtained by LAQ from clients where:

• the potential conflict of interest has been identified and explained to the clients,
• the interests of the clients are currently aligned,
• it has been explained to the clients that LAQ cannot act without informed consent,
• that the clients acknowledge that they have provided all relevant information needed for a determination to be made by LAQ that informed consent is appropriate in the circumstances,
• it has been explained that in the event the clients’ interests are no longer aligned and have become divergent, LAQ will cease to act,
• it has been explained that in providing informed consent, does not remove the clients’ right to decide at a later time that they do not wish for LAQ to represent all clients,
• it has been explained to the clients that they have the option of seeking further legal advice, and
• the client have had sufficient time to consider whether to agree to signing an informed consent form.

Where a conflict of interest cannot be managed then the LAQ lawyer cannot provide advice or representation and must withdraw and refer the clients elsewhere.

A clear and accurate record of the identified conflict of interest and how the conflict of interest was managed (including determining there is no conflict of interest/obtaining informed consent/terminating advice session/representation) must be maintained in LAQOffice advice record or the case file (paper and electronic records).

Examples of scenarios that may require consideration of conflicts of interest in FRLS matters include:

• married/defacto couples presenting together for legal advice regarding a farm business debt where there is domestic violence,
• married/defacto couples presenting together for legal advice regarding a farm business debt where the parties have separated,
• client and wife/partner/parents/grandparents/children/extended family presenting together for legal advice regarding a farm business debt where the wife/partner/parents/grandparents/children/extended family are guarantors for the debt facility,
• client and parents/grandparents/extended family presenting together for legal advice regarding where there is elder abuse,
• parties to a partnership presenting together for legal advice where there is a prospect party interests are not aligned etc.

L.7 Grant of legal aid

The approving authority of a grant of legal aid is the Grants Division of Legal Aid Queensland (LAQ).

A grant of aid must exist before any work can be done on the file (unless an emergency exists).

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

In all cases the lawyer representing the client is to open the file in accordance with Part A of these Case Management Standards – civil law.

The lawyer should request and obtain any documents in the client’s possession and consider what further documentation is required and from whom – refer to paragraph L.5.

Initial client letters will include:

• advise the client of any time limits relevant to their matter under the FBDMA or other relevant legislation,
• an explanation of the lawyer’s role:
  • to provide representation for farm debt related matters only and that there are no grants of legal aid for court proceedings,
  • to provide up to date, accurate and appropriate information, advice and representation including advice on outcomes to be sought/ prospects of success of the matter,
  • explain the grants of legal aid process and explain what grants of aid the client is eligible to apply for,
  • be courteous and approachable,
  • listen to client, treat client as an individual and try to meet any special needs,
  • use language that the client understands,
  • ensure client confidentiality.
• an explanation of the conditions of the grant of legal aid and that the client must:
  • keep the lawyer informed in any change to their contact details including postal address, email address and telephone number,
  • keep legal appointments with lawyer or phone the lawyer with a reasonable period of time, if unable to attend,
  • be open and honest when talking about their legal problem,
  • ask if they do not understand what is happening in their case,
  • ensure they are contactable and provide instructions, information and documents when asked, and
  • follow the legal advice provided by the lawyer.
• advise the client of the limits of the grant of legal aid,
• advise the client 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.
• inform the client their rights and obligations about fees and charges and in particular the requirement for them to pay half of the mediator’s fees, travel cost and other out of pocket expenses of the mediator should the matter proceed to mediation.
• request signed authorities (including authority to RFCS to release information and discuss the client’s matter),
• request relevant documents be provided by the client – refer to paragraph L.5.14.

If the client has not previously had legal advice contact should be made with the client and advice provided as set out in paragraph L.5 above.

If the client has not already contacted the RFCS make a referral to - Rural Financial Counselling Service (RFCS) Southern Queensland (RFCSSQ) or Rural Financial Counselling Services (RFCS) North Queensland RFCSNQ.

L.8 Working with other professionals

Representation of the client in a farm debt matter will generally require the lawyer to work with other professionals including:

• rural financial counsellors,
• agri-advisers,
• accountants, and
• other legal advisers.

This work will include gathering of relevant information, documentation and reports to develop options and strategies with the client to advance the client’s legal and financial position in preparation for negotiations/or mediation with the client’s creditors.

Standards for working with other professional:

• any proposal, statement of position, asset and liability positions, cashflows, or other information prepared by another professional (eg accountant, agronomist etc) must be provided to the client for review and their written instructions obtained disclose before providing to the creditor.
• if a private lawyer is retained as part of the legal team to assist the client, the FRLS Lawyer must:
  • obtain the client’s written instructions as to the parameters of legal assistance bring provide by the FRLS.
  • obtain the client’s written instructions as to the parameters of the assistance being provided by the private lawyer,
  • obtain the private Lawyers written approval agreeing to those parameters, and
  • keep precise details of any actions taken in the course of those instructions.
• if the lawyer considers that the client has received conflicting advice from private lawyer, the lawyer should contact the private lawyer and discuss. If the advice from the private lawyer conflicts with the advice from the FRLS, the lawyer should contact the client and give the client the opportunity to confirm instructions to the FRLS. If these instructions are not provided by the client, the lawyer must withdraw and cease acting for the client. The Grants Division must be notified of the situation for a decision to be made regarding termination of the grant of legal aid.

L.9 Client representation - General Principles

The lawyer is to:

1. communicate regularly with the client,
2. forward to the client all relevant substantive correspondence sent or received on behalf of the client,
3. maintain accurate and contemporaneous records of all dealings with the client, RFCs, other parties and professionals etc,
4. comply with LAQ’s Case Management Standards,
5. encourage the client to participate to the greatest possible degree and be prepared to work with or through interpreters, support workers and friends or family where appropriate and the client’s consent has been obtained (and recorded on the file – paper and electronically),
6. be empathetic to the emotions and concerns that the client may have and be prepared, as much as is practical and appropriate, to be flexible in the way the case is managed,
7. be aware of possible mental health issues which may be affecting the client and be prepared to offer referrals,
8. consider a referral to the CJS Social Services Coordinator if the client experiences significant vulnerabilities, special circumstances or is in significant emotional distress. Refer to Social Support Services Program Guidelines or discuss with Social Services Coordinator if a referral might be appropriate.
9. identify other legal issues that may need to be addressed to enable the client to engage in the legal process and provide appropriate advice and referrals,
10. assess the nature of any potential safety issues or health issues which may impact the farm debt mediation,
11. consider whether the client needs any additional supports at meetings with the creditor or at the mediation (would it be better if they had a support person with them),
12. ascertain whether an interpreter is required and utilise interpreters in accordance with the Language Services Policy.

L.10 Farm debt mediation process

Representation is determined by what the stage the client’s matter has progressed within the farm debt mediation process.

The stages of a farm debt mediation process are:

• Pre-Mediation stage:
  • FBDMA notice has not issued
  • FBDMA notices have issued
• Mediation stage
• Post Mediation Stage:
  • Agreement achieved:
    • Notifying client of Agreement
    • Monitoring of obligations and terms in Agreement
    • Assisting client in further negotiations with the Creditor if the client is unable to achieve or comply with the terms of the Agreement. Assist the client with any exit strategy while the client remains indebted to the creditor.
  • No Agreement achieved:
    • Assisting client in further negotiations with the Creditor to enable an exit strategy to be implemented (if possible) while the client remains indebted to the creditor.
• Finalisation and closure of file

L.11 Pre mediation

L.11.1 General guidance

The lawyer is to:

1. Work with the client to identify what assets are potentially at risk.
2. Consider whether there are any matters requiring further exploration for example:
   1. Was it an appropriate loan?
   2. Was the conduct of the creditor during the financial relationship appropriate and conscionable?
   3. Should the creditor have granted the loan?
   4. What has been the result of the creditor’s bad behaviour?
3. Consider referral to Customer Advocate section of the creditor if appropriate.
4. In particular, consider issues such as inappropriate lending practices, fraudulent or unconscionable conduct, unfair and unreasonable practices which the creditor may have engaged in and advise the client of:
   1. any legal implications of any wrongdoing by the creditor and
   2. that the mediation process may not resolve wrongdoing issues satisfactorily for the client if the creditor is unwilling to acknowledge wrongdoing or make any allowances for such conduct at the mediation.
5. Advise the client that the choice to proceed to mediation is the client’s sole decision.
6. Identify and advise client of all relevant time limits and act to secure client’s interests within those time limits.
7. Advise the client of other potential avenues available to them while confirming that FRLS will be unable to assist them further in any matter outside of the scope of FRLS. Provide referrals on other relevant and available legal remedies.
8. Consider and advise client as to whether the matter falls within the jurisdiction of the Australian Financial Complaints Authority AFCA and whether the matter is more appropriately managed by AFCA and what action should be taken in this regard and specifically:
   1. If an AFCA complaint is appropriate, explain the AFCA procedure and potential benefits/disadvantages of a complaint to AFCA.
   2. If issues are outside of the scope of AFCA or that AFCA is unable or unwilling to accept the complaint, consider what other avenues may be available to the client.
   3. assist the client to lodge a complaint to AFCA, the submission should include a summary of the relevant facts relating to the matter complained of.
   4. Where a complaint has already been made to AFCA, 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.
9. Explain the need for the client to provide full and frank disclosure of financial information to the lawyer, RFC and other advisers and the need to work closely with the other advisers (rural financial counsellors and others) to prepare financial information, cashflow projections and other financial information.
10. Explain the need for the client to be realistic in preparing cashflow projections and other financial data and that overly optimistic projections may be counter-productive to their interests.
11. Explain that the creditor will be requiring the client to provide accurate financial data concerning their current financial position and cashflow projections highlighting that the creditor will generally make financial decisions relating to the future conduct of the accounts based on that financial information.
12. Develop proposals and options with the client in conjunction with the services of other professionals to be considered at the mediation. Refer to paragraph L.11.3 below.
13. Discuss possible proposals and options which the creditor may propose at mediation.
14. Obtain written confirmation of instructions from the client:
    1. any proposal, statement of position, asset and liability positions, cashflows, or other information provide by another professional must be provided to the client for review and their written instructions obtained to the client’s written disclose and present to the creditor, and
    2. as to the outcomes they wish to achieve from the process.

L.11.2 Pre Mediation Stage - Collection of documents

The lawyer is to:

1. Request and obtain copies of all relevant documents from the client including but not limited to bank documents, correspondences, loans documents, cash flows, tax returns, etc.
2. Advise client that they must provide their most recent taxation return prepared for lodgement, asset and liabilities, and cash flow (for at least 12 months) projections within 30 business days after receiving a notice under s16(3) of FBDMA.
3. Obtain authorities and request copies of any documentation relevant to the matter, including:
   1. Title Certificates and searches from the Land Titles office;
   2. PPSR searches and information relating to client and farming entity;
   3. Valuations/real estate market reports; etc
   4. ASIC Company searches when necessary;
   5. Marketing strategies for sale of property from real estate agents (if considered appropriate at that time);
   6. Quotes for repairs to property or for work to be undertaken to present property for sale;
   7. Costings for any exceptional costs which may be expected to be incurred by the client.

L.11.3 Pre Mediation Stage - Client Statement

It is preferable for the client to work with the RFC and FRLS to provide a statement of position, assets and liabilities and cashflow projections to the creditor and mediator prior to the mediation (preferably several days beforehand).

NOTE: It would be very unusual for a statement of position of the client/relevant other persons not to be obtained as it is considered a necessary part of representation of the client.

Whilst the lawyer will obtain a statement of position from the client and relevant other and ensure the client has the opportunity to review, correct and adopt the statement as follows:

• where the client is literate:
  • obtaining the client’s (client authorised third party) signature on the statement; or
  • obtaining the client’s (client authorised third party) email acceptance of the statement.
• where the client/client authorized third party has limited literacy:
  • by reading the statement to the client/client authorized third party,
  • obtaining the client’s/client authorized third party signature on the statement with a notation signed by lawyer confirming statement was read the client;
  • recording file notes supporting this and, having afforded the client the opportunity to correct it, detailing the client’s amendments to the statement and acceptance of the statement.

The statement of position should be prepared in consultation with the client and RFC. The statement of position include:

• Personal Position
  1. age and health of client,
  2. details of family,
  3. responsibility for school age children including school arrangements,
  4. length of time on property, if applicable,
  5. personal information that has impacted financial hardship (this should only be included if appropriate and with client’s consent).
  6. options the client has for resolving issues with creditor refer to paragraph L.11.1.n(ii) above.
• About the facility and creditor
  7. full particulars of all other joint debtors or guarantors, including current contact details, address, dates of birth, if possible;
  8. full particulars of all secured creditors, including contact details, if possible;
  9. full particulars of all unsecured creditors, including contact details, if possible;
  10. full details of all assets owned or controlled by the client.
  11. full particulars of all assets owned or controlled by the client, including companies, trusts and partnerships.
  12. full particulars of the nature of the dispute, the history of the financial relationship and current arrangements with the creditor.
  13. a comprehensive account of the circumstances surrounding the financial history and other relevant matters affecting the outcomes sought by the client.
  14. information from the client concerning their issues and concerns regarding their relationship with their creditor or with the process.
  15. details of extensions/indulgencies given by the creditor.
  16. instructions about the reasons for the financial hardship (this may include personal information and should only be included if appropriate and with client’s consent).
  17. whether the financial breach is a result of natural disasters/commodity collapse which are responsible for the client’s financial position;
  18. consider if any disaster funding or other services could have been accessed by the client and if the financier was derelict in not referring client to such help.
  19. consider the consequences such financial assistance this funding may have made.

L.11.3 Pre Mediation Stage – Options and Cashflows

Develop proposals and options, to be considered at the mediation, with the client in conjunction with the RFC and services of other professionals.

Clarify client’s concerns regarding the relationship with the creditor. Advise client that mediation is one of the few occasions when the creditor must listen to clients concerns in an environment which the creditor may not control.

If the lawyer considers outcomes sought by the client to be unachievable, the lawyer should provide written advice setting out those concerns with reasons supporting that opinion.

The lawyer should consider what alternate options may be available in the circumstances and present them to the client for the clients’ consideration.

The lawyer must advise the client that the creditor is not required to agree with the clients wishes and each party may be required to compromise their positions to achieve an outcome. There is no obligation on the creditor to agree with the client’s proposed outcomes. The lawyer should counsel the client to be prepared that the creditor may not agree with the proposals.

Arrange for the RFC to prepare cashflows for each option being proposed by the client.

Defer to the RFC for cashflow and other financial matters/information but the lawyer must review all cashflows/information and be prepared to critically analyse figures within context of legal advice and reality testing of options.

NOTE: This is an important part of the pre-mediation preparation process. Preparation of cashflows for each proposed option gives the client an idea of where finance facilities will go to and how much money is needed to make each option work.

Don’t make assumptions about what the creditor will and/or won’t accept but make sure the client is aware of the likelihood of each option being accepted by the creditor.

Discuss possible proposals and options which the creditor may propose at mediation and obtain written confirmation of instructions from the client – refer to paragraph L.11.1L above.

L.11.4 Mediator – Fees, booking mediator, mediator agreement

L.11.4.a Fees

The lawyer is to ensure the client understands their rights and obligations about fees and charges and in particular the requirement for them to pay half of the mediator’s fees, travel cost and other out of pocket expenses of the mediator should the matter proceed to mediation.

If the client has insufficient capacity to pay cost of mediator’s fees, consider:

• exploring other funding sources such as Services Australia’s Farm Household Allowance (FHA) and other sources. (Some mediators will agree to wait for funds from FHA etc. The lawyer is to discuss these issues up front with the client.)
• raising this issue with the RFCs – they may have funding available to cover costs, or
• >contacting the creditor and explaining the situation and request that the creditor pay the full cost of the mediator’s fees (the client’s share of the fees are added to the facility).

L.11.4.b Booking the Mediator

After client and the creditor exchanges QRIDA S15 and S16 Notices, FRLS will liaise with client, RFC, and creditor to contact the agreed mediator to arrange for the farm debt mediation to proceed on a mutually suitable date and location.

L.11.4.c Mediator Agreement

Prior to the farm debt mediation, the mediator will circulate a mediation agreement to be reviewed and signed by the parties. The mediation agreement includes the terms for mediation including scope of mediation process, confidentiality clauses and arrangements for payment of mediation fees. The mediation agreement also includes an invoice to be paid by each party to the mediation. The mediation cannot proceed until the agreement is signed by all parties. 

L.12 Mediation

The lawyer representing the client must apply for and receive relevant grants of aid before acting for the client at an informal mediation or formal mediation under the FBDMA.

L.12.1 Preparation Checklist

To prepare for a mediation the lawyer is to:

1. ensure arrangements for the mediation are completed;
   1. client and creditor informed of dates and address for mediation,
   2. travel arrangements for lawyer etc
2. ensure arrangements for mediation are finalised including:
   1. selection and booking of mediator,
   2. payment of mediator fees and
   3. signing of mediator agreement.
3. meet with the client in person with the RFC prior to the mediation discuss all matters raised in previous paragraphs of this case management standards have been addressed and in summary:
   1. address relevant legal issues and applicable case law,
   2. bring them up to date with any recent developments,
   3. confirm the issues and concerns of the client,
   4. reiterate the confidentiality of the mediation process.
   5. Review cashflows and other relevant financial information,
   6. confirm client instructions regarding outcomes to be sought from mediation,
   7. as relevant to the individual client’s circumstances, expected standards of conduct and behaviour for mediation, and
   8. raise any other matters relevant to the client’s case.
   It is also appropriate to explain to the client that:
   1. mediation is their day to explain their situation and proposals,
   2. whilst the mediator facilitates the process, the mediator is not a judge and mediation is not a court process whereby the mediator makes a decision – the mediator facilitates discussion and assists the parties to explore and where possible terms of agreement suitable to the client,
   3. mediation is an opportunity for the client to decide on what basis they are prepared to resolve the matter – it is their decision.
   4. best practice is to work with the creditor – don’t be abusive or disruptive,
4. discuss with the client matters relating to the mediator’s approach:
   1. advise client that each mediator’s approach is different,
   2. the approach taken depends on mediator for example some ask for the client to present their position while others ask the LAQ Lawyer to do so.
   3. whether the client is comfortable presenting their story if not check with mediator to work out suitable approach.
5. ensure all relevant and necessary documentation (searches, cashflows, statements etc) has been prepared/obtained and provided to the creditor and mediator.
6. advise the mediator of any safety concerns and seek confirmation from the mediator as to what arrangements can be made to ensure the safety of all parties.

L.12.2 Mediation checklist

During the mediation the lawyer is to:

1. ensure the following are addressed:
   1. the relevant facts,
   2. the relevant legal issues, legislation, guidelines, protocols etc,
   3. outcomes sought by the client – refer to paragraph L2.
2. decide whether the client or the lawyer addresses the issues at the mediation (this decision is a matter for professional judgement; if the client ultimately presents the lawyer should supply necessary details omitted by the client/remind client of points to raise; if the lawyer presents ensure to check with clients as to whether anything further is to be raised or discussed) – refer to paragraph L.12.1e above,
3. ask for a private meeting/break if the client becomes distressed during the mediation or otherwise requires legal advice – be prepared to assist client to request private meeting/break,
4. at private meetings during the mediation, carefully explain options and proposals discussed during the mediation to the client and:
   1. give the appropriate legal advice;
   2. the consequences of agreement or failure to reach agreement on any current and future grant of aid should also be discussed;
   3. the client should be encouraged to compromise wherever it is appropriate, but not forced to reach agreement;
   4. reality test all proposals for agreement with the client,
5. ensure that any agreement reached is explained in detail to the client and is fully understood by the client.

TIPS:

• Generally, it is not good practice to ask the creditor what it is wanting to achieve from the mediation.
• Use a whiteboard if available during;
  • private meetings with the client:
    • whiteboards are a useful tool to assist clients to visual and consider options
    • don’t allow whiteboards used in private meetings to be viewed by the creditor without client’s consent, either wipe it clean or turn it around if possible.
  • mediation open discussions
    • Whiteboards are used by mediators to discuss options made and/or add additional options,
    Take photos of all whiteboard notes before they are changed or removed as a record of how the mediation progressed and what was discussed.
• Reality test with the client all proposed options with the client to ensure the client understand the workability and appropriateness of each option.
• The lawyer should confine their advice and opinion to legal issues although sometimes lawyer can reality test the client in relation to option for example where clients seek to remain as customers of the creditor despite the creditor advising to the contrary or advised refinancing through them is not an option.

L.12.3 Agreement checklist

In relation to any agreement achieved:

• The lawyer is to consider what terms are to be included in the Heads of Agreement (HOA) and seek inclusion of those terms.
  NOTE: Don’t accept clauses merely because they are proposed by the mediator/creditor.
• Often the creditor’s corporate lawyer/legal representative prepares the HOA,
• It is, however, the mediator’s responsibility to supervise the drafting of the agreement.
• The lawyer is to check the draft HOA with their notes and whiteboard records.
• Avoid rushing the client into making a decision regarding the HOA
• Ensure the client is given a copy of the HOA and:
  • read through the HOA aloud with clients in a private meeting away from the creditor,
  • is given time to consider and seek advice from the lawyer about the terms of the HOA,
  • reality test the client’s understanding of the HOA and how the agreement will work – what actions have to be taken by the client/timeframes for doing so/costs involved etc
  • make amendments to the draft as instructed by the client.
• If time for the mediation has come to end seek an adjournment to enable sufficient time for the client to read, review, consider and understand being agreeing to sign the HOA.
• Explain to the client the cooling off period.
• Support clients in their decision.
• The mediator will have each party sign mediation HOA and QRIDA Form 2 Summary of Mediation which has a list of questions/answers by mediator for the client to answer. Clients will be invited to sign the form 2.
• Ensure client receives copy of HOA, form 2 and all whiteboard notes at conclusion of the mediation.

Upon HOA being signed by the client and the creditor, it is the responsibility of the mediator to lodge HOA and Form 2 Summary of mediation with QRIDA.

L.13 Post mediation

L.13.1 Agreement achieved

The lawyer should write an email/letter to the client confirming the agreement and enclosing a typed copy of the agreement.

The lawyer should continue to assist the client in the post-mediation process and as appropriate to ensure compliance with the agreement.

Generally, this post mediation assistance is undertaken in conjunction with other advisers such as the RFCS.

The RFC often works in a locality near to the client’s farm and is able to maintain personal contact with the client during the post-mediation/forbearance period.

The FRLS lawyer may be required to:

1. Follow up with RFC and monitor the progress of the client in complying with the terms of the agreement and provide advice to the client during this process;
2. Seek variations, extensions of time and other moratorium conditions;
3. Conduct negotiations on behalf of the client with the creditor or other unsecured creditors
4. Negotiate discharges and releases in an endeavour to protect the client’s best interests;
5. Conduct negotiations with receiver managers and other bodies appointed by the creditor during the forbearance period.

Generally, upon negotiations with the creditor being finalised, the client complying with the terms of any final agreement negotiated with the creditor or the matter being otherwise finalised, the FRLS Lawyer will close the file and write to the client confirming finalisation of the matter.

If during the course of the matter, the client fails to respond to correspondence/telephone calls and provide adequate instructions, the FRLS Lawyer has the discretion to take action to withdraw from acting by, writing to the client advising of the issue, notify the Grants Division of the circumstances of the matter and upon the grant of aid being termination advising the client that FRLS is ceasing to act.

L.13.2 No Agreement achieved

If no agreement is reached, advise client of options available

If no agreement is reached, the lawyer should confirm this in writing with the client and provide advice to the client about their options including options:

• for further negotiations with the creditor,
• complaint to AFCA,
• any relevant time limits,
• commencing court proceedings (including risk of costs).

The lawyer should ensure the client is informed in writing by email/letter that the creditor has fulfilled its obligations under the Farm Business Debt Mediation Act 2017 (FBDMA) and may commence enforcement action by lodging a ‘Form 4 Application for Exemption Certificate’ with QRIDA after a satisfactory mediation and any Agreements made at mediation has been breached, or when client failed to mediate/respond to S14 Enforcement Notice.

Under the FBDMA, QRIDA does provide for show cause notices to be issued and client has the opportunity to respond within the show cause period (usually within 20 business days) and provide reasons/grounds showing why an exemption certificate should be not issued. Explain the relevance and effect of those notices. Arrange for the file to be closed.

L.14 Finalisation and closure of file

The lawyer should write a final letter to the client confirming:

• outcome achieved,
• all work under the grant of legal aid has been completed and
• the file will now be closed.

The final letter must also include:

• advice regarding any relevant time limits,
• appropriate referrals to other professionals,
• advice on which documents the client should retain in the event there are further difficulties,
• advice on any credit reporting consequences for the client upon closure of the file, and
• return original client documents and advise on how long Legal Aid Queensland will store the file.

The lawyer must complete the file closure checklist.

The lawyer will consider whether it is appropriate to write a deidentified case study for the file on the basis of assisting with future systemic policy change.

Document effective date

December 2020

Annexures

• A. Client information sheet(PDF, 107KB)
• B. Best practice guidelines for lawyers working with people who have experienced domestic violence
• C. Administration of war veterans' matters checklist(PDF, 151KB)
• D. Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander clients
• E. Guidelines for working with interpreters(PDF, 139KB)
• F. Best practice guidelines for working with children and young people
• G. Best practice guidelines framework: Working with children and young people

Last updated 29 April 2024