Having discussed criminal law and civil law, I now propose to talk about family law and the demands it might make upon a barrister.

Whilst family law has its own unique features, it is most definitely a constituent part of the litigation arm of the law and those aforementioned rules of litigation apply to family law, as we shall see.

No decision can be made by a Court exercising family law jurisdiction without it being based on the evidence lawfully before the Court.  That evidence gets before the Court through witnesses, whether that occurs by way of affidavit or the witnesses giving evidence in the witness box.

On that basis the similarity with criminal law and civil law matters is significant and the extent to which family law matters might be subjected to a similar regime of obligations as those in criminal law and civil law matters is interesting.

In the circumstances I see no reason to distinguish between the obligations that will apply to advising a civil law client and a family law client when it comes to assessing the matter and being prepared for trial.

Accordingly in my view a family law client can expect to be advised by the barrister on these issues:
•    The strengths and weaknesses of their own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The possible impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct themself as a witness;
•    How any other witness might conduct themself as a witness;
•    The likely impression of the Client upon the Judge, when the Client gave evidence;
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

In order for the family law client to be given such advice that client would need to talk to a solicitor. The solicitor could then use their professional skill and judgment to obtain all the relevant material for the advice, omit all the irrelevant material and compile it into a coherent brief for the barrister. Upon reading and considering the contents of that brief the barrister is then in a position to confer with the solicitor and the client. Using their professional skill and judgment gained from going to Court and arguing such matters, the barrister is able to discuss the case with the solicitor and the client and advise them in respect of it. At the end of that conference the family law client would be fully informed as to the strengths and weakness of their case and what options might be available in respect of it.

That interplay of professional skills and responsibilities between the barrister and solicitor best serves the family law client in answering their enquiries and educating them as to their position.

Ross Bowler LLB

Over the next couple of blogs I propose to deal with the role barristers can play in the legal system.

Criminal Law
The role of the barrister in criminal law matters is reasonably well known and understood.

Advice On Giving and / or Calling Evidence
Once full and proper written instructions have been taken from the Accused by the solicitor, the Accused is entitled to be properly advised in respect of giving and / or calling evidence at the trial.  That advice invariably comes from a barrister and the Court of Appeal has said that advice should include a discussion of the importance of:
•    The relative strength of the Crown case;
•    The impact upon that case from the course of the cross-examination;
•    Making a sworn denial before the jury;
•    Whether there was some unanswerable problem that the Accused would have confronted in giving evidence;
•    Earlier versions given by the Accused which might be difficult to reconcile with the current evidence of the Accused;
•    How the Accused would conduct himself as a witness;
•    The likely impression of the Accused upon the jury, if he gave evidence;
•    Any possible relevance of his not giving evidence at trial to determination of an appeal against conviction;
•    A potential advantage in the case of being last to address the jury.
It is also very proper to record the advice given in a complete fashion. (See R -v- ND [2004] 2 QdR 307; [2003] QCA 505)

Having had those discussions with the accused, the barrister is then in a position to advise the accused the prospects of success at trial and what might occur if the matter was compromised by way of a plea of guilty.

The accused is then in a position to make a fully informed decision as to how the matter ought proceed, either at trial or by way of plea of guilty and sentence.

Civil Litigation
Whilst civil law trials are different to criminal law trials in many respects, there are also many similarities.  The focus of criminal law trials is on the accused and all of the disclosure is expected to have occurred well before the matter comes to trial. Civil trials see the focus more evenly spread across the witnesses and a failure to disclose evidence may not be a reason to delay or adjourn the trial.

Bearing in mind the standard of proof in a civil trial is on the balance of probabilities, as opposed to beyond reasonable doubt in a criminal trial, let us look at how the aforementioned list of obligations and entitlements in a criminal law trial might apply in a civil trial.

The civil law Client would be entitled to be advised as to:
•    The strengths and weaknesses of his own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge or jury, as the case may be;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct himself as a witness;
•    How any other witness might conduct himself as a witness;
•    The likely impression of the Client upon the Judge or Jury, if he gave evidence;
•    Any possible relevance of the Client not giving evidence at trial to determination of an appeal against liability or damages, as the case may be;
•    A potential advantage in the case of being last to address the Judge or Jury; nowhere near as significant in a civil trial.
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

Conclusion
In my submission the obligation to advise a Client in respect of a civil trial is very similar to the obligation the Court has identified in respect of criminal trials. Accordingly comparable preparation for that civil trial can be expected to be required of the legal representatives.

This would then enable the Client to make an informed decision as to the merits of the case sought to be run and what the Client might wish to do in respect of that case.

It would also enable optimum discussion about the extent to which mediation is appropriate in the case and what the Client may stand to gain or lose by compromising the matter.

What obligations do you see that fall to a barrister when it comes to advising a client before a trial?

Ross Bowler LLB

It is said that love is blind.  It is also said that love can make people do some funny, perhaps even crazy things.  Those observations might explain why acts are done within families and personal relationships that would not be advised by a sage, circumspect legal practitioner.  Often those acts within families occur without any contemplation of the love apparently underlying those acts ever going wrong.  It is usually only when that love has gone wrong that the family members seek legal advice to recover the goods, possessions and / or money that were part of the original transaction.  Sober, dispassionate attention is required when considering such family arrangements and the introduction of that attention to the family fold is not always greeted with great love and affection by the family members.

Almost without exception the ultimate question the Court will ask in respect of those now seemingly controversial family arrangements is whether in all of the circumstances “the parties intended to subject their agreement to the adjudication of the courts”.   (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [9])

A Court charged with the responsibility of determining whether particular family arrangements enjoy the benefits and responsibilities that derive from an intention to create legal or contractual relations will tell you that for there to be a legally enforceable duty the following must be present:  
•    Identifiable parties to the arrangement;
•    Certainty in the terms of the arrangement; and
•    Generally, real consideration for the agreement, unless recorded as a deed.
(See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7])

The Court will make an objective assessment of the state of affairs between the parties to determine what the terms of any family arrangements may mean, rather than enquire as to what each of the parties subjectively intended to achieve. (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7])   The onus of proof lies on the party alleging that legal relations have been created. (See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [10])

Relevant considerations for an inquiry in relation to the existence of such an intention are as follows:  
•    The subject matter of the agreement;
•    The status of the parties to the agreement;
•    Their relationship to one another; and
•    Other surrounding circumstances.
(See Morais & Anor -v- Mills [2010] QDC 237 per Dorney QC DCJ at para [7]

Two areas where one might see family arrangements lead to enquiries about litigation are:
•    Leasing real property to family and friends; and
•    Lending money to family and friends .

Leasing Real Property To Family and Friends
It is not uncommon for families to let out real property they might possess to family or friends. Often such an endeavour is undertaken without anyone involved obtaining legal advice as to the implications of the arrangements or perhaps even recording the arrangements in writing. Should that relationship not progress as planned, such as the tenant not making the rental payments in accordance with the agreement, the landlord might seek to enforce the tenancy agreement he or she contends is in place.  In those circumstances the Plaintiff Landlord would need to demonstrate that:
•    Legal relations have been created between the Plaintiff Landlord and the Respondent Tenant; and
•    The subject tenancy agreement was always one where the Tenant would be sued in the courts for any outstanding rent.
A failure to do so will invariably lead to the Court concluding that no relevant intention to create legal relations existed between the parties.   The Landlord would then not be able to rely upon that avenue of potential recovery.

Lending Money To Family and Friends
Other family dealings worthy of consideration here are those that involve the lending of money to family or friends.  Once again it is not uncommon for money to be loaned to family members or friends in circumstances where none of the participants involved obtain legal advice as to the implications of the arrangements.  Further it is also not uncommon for those arrangements not to be recorded in writing.

Should a situation arise within that relationship whereby the lender contends that the borrower has not made relevant payments under the loan agreement, the lender may wish to have recourse to the courts in order to recover the money he / she says is outstanding under the loan agreement.  Unless the Plaintiff Lender can prove that he / she would subject that Defendant Borrower to being sued in the courts for the return or repayment of the money, the Court is unlikely to find a relevant intention to create legal relations existed between the parties.   What was contended by the lender to be a loan would be seen to more akin to a gift.  Once again the borrower would then not be able to rely upon that avenue of potential recovery.

Conclusion
When relationships sour and/or love goes wrong the parties involved tend to look at their relevant relationships differently from when they were first created.  Return or recovery of goods, possessions and/or money is sought in circumstances where it may not have been, had the relevant relationship conformed to its originally planned path.  The path the court takes in such circumstances is not one similarly prone to change.  If it can be demonstrated that the parties intended to subject their agreement to the adjudication of the courts, then the courts will continue to entertain the matter. A failure to demonstrate that intention to create legal relations on the part of the relevant parties will invariably leave the parties without the assistance of the courts to resolve their dispute.

Those seeking to embark upon family dealings which do not manifest an intention to create legal relations would do well to consider the implications of that failure before they conclude their dealings.

Ross Bowler LLB

Consumers can not only be affected by the Personal Property Securities Act 2009 (Cth) ("PPSA"), they may have rights that warrant enforcing. This hypothetical factual scenario hopes to shed some light on that world.

The Student Share-House
Four university students live in rented accommodation whilst they undertake their full-time studies. With their combined resources they are also able to afford to furnish that accommodation with some relevant necessities by undertaking a chattel lease of some personal property. In so doing they may find that they come within the reach of the PPSA.

Homeware Rentals is a business that rents out such personal property in the ordinary course of its business and its customers sign contracts of lease recording the terms and conditions of that rental. For the purpose of this exercise I will assume that lease is simple and not controversial. The students would undertake to make the lease payments in accordance with the contractual terms and Homeware Rentals agree to provide the relevant subject personal property to them for the duration of the lease.

It should be noted that the transaction with the students is considered to be a consumer transaction under the PPSA. This gives it special status, as we will see. (See ss.42, 46-47 PPSA)

Register Security Interest
In order to protect its interests Homeware Rentals registered the security interest that arose in respect of that property and obligation on the Personal Property Securities Register (PPSR). As the students do not have a security interest in the relevant property, they had nothing to register in respect of the property.

Importantly also, Homeware Rentals has borrowed money from Worstpac Bank. To secure its obligations, Worstpac Bank registers a security interest over all of the goods of Homeware Rentals. These goods include the ones leased by the students. Therefore the goods of the students are subject to the following security interests:
1     In favour of Homeware Rentals (first security interest); and
2     In favour of Worstpac Bank (second security interest).

Receivers Appointed
Hard times fell upon Homeware Rentals and Hardball Receivers were appointed to it as a result of an application to the Court by a major secured creditor, Worstpac Bank. On behalf of Worstpac Bank, Hardball Receivers would seek to recover as much of the money owing to Worstpac Bank by Homeware Rentals as possible, if not all of it. One of the ways open to it to do this is by seizing the goods of Homeware Rentals and selling them. (Ss.123, 125, 128) It seems though that Worstpac Bank cannot take possession of the subject goods because the students are protected by s47(1) PPSA. Under this section, the students take free from any security interest, because the goods are consumer goods.

The effect of this is that the students will only need to deal with Homeware Rentals; they will not face the prospect of Worstpac Bank showing up and resuming or repossessing the subject goods. In a way this retains the contractual nexus between Homeware Rentals and the students.

Power To Seize Collateral
Homeware Rentals is a secured party in respect of the goods by virtue of the first security interest. S123 (1) of the PPSA gives it the power to seize collateral or the goods the subject of the lease, by any method permitted by law, if the students are in default under the first security interest.

While Worstpac Bank is not entitled to exercise its rights to seize the goods under the second security interest (s47(1) PPSA), s53 PPSA allows Homeware Rentals to stand in the shoes of Worstpac Bank to recover the chattels.
   
Position of The Students
There are two relevant considerations for the students:

1     They are not in default under their lease with Homeware Rentals - so Homeware Rentals has no right to seize the goods on its own account (under the first security interest).

2     But what about the interest of Worstpac Bank under the second security interest? While Worstpac Bank itself seems to have no rights directly over the goods (they are exempt - s47(1)), Homeware Rentals may stand in its place to recover money owing. The way in which this provision will operate is perhaps a little unclear. However, it is likely that so long as the students are not in breach of their agreement with Homeware Rentals, they can continue to keep the goods free from threat.

How Do Consumers Go About Enforcing Their Rights?
There is plenty of assistance available for consumers, such as our students, to enforce their rights. Community legal centres, consumer law advice services and even student service centres in universities are equipped to provide advice and education on consumer rights. See for example http://www.caxton.org.au/consumer_law.html

Conclusion
What is your view of the operation of these provisions? They seem to point towards protection of the consumer: is it feasible that the students would lose their goods to Worstpac Bank?

Ross Bowler LLB