Inbrief

It is indeed heartening to learn that, during the period of health-related restrictions relating to the COVID-19 pandemic, the Court has continued to operate essentially at its normal capacity, with Judges hearing close to 20 matters per day, and Judges and Registrars, dealing with case-management, hearing over 500 matters per week.

The Chief Justice also thanks the legal profession for its efforts in assisting the Court to remain almost fully operational during this period.

Correspondence from the Commonwealth Attorney-General regarding application of the JobKeeper program

The Association has received a further response from the Commonwealth Attorney-General, the Hon Christian Porter MP, regarding the application of the JobKeeper program.

The Attorney has advised that the ATO has introduced an alternative turnover test for eligibility for the JobKeeper program. Under this alternative test, the ATO will accept an accruals basis of accounting for revenue purposes. This approach may provide evidence of a decline in turnover at an earlier point of time.

The Attorney has also indicated that the Government will provide an alternative decline in turnover test for the eligibility of special purpose service entities that provide employee labour to group services.

More information on alternative turnover tests can be found here

The Association will update members on these changes as further information comes to hand.

COVID-19: Information for attending Court

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has today again been updated in terms of recent developments, and includes today's announcement from the Chief Justice outlined above.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

The webinar will open from 6:30pm and the presentation commences at 7pm.

For the 2020-21 practising year, the minimum level of PII insurance that a NSW barrister must take out is $1.5 million.

To assist barristers, the Bar Association publishes on its website all approved PII policies offered by Aon, Marsh, Suncorp, Willis Towers Watson and Austbrokers Countrywide, together with contact details, information about stamp duty exemptions and a table comparing the PII policies.

Please note that it remains the responsibility of the individual barrister to satisfy himself or herself as to the content of the policies on offer, the terms and conditions, and the premium applicable to them.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

SULS is short on mentors this year due to the effects of COVID-19 and would very much appreciate as many volunteers as possible. They will aim to pair mentors with mentees depending on the mentee's preferences (interests in practicing law) and may assign mentors to a small group of students depending on registration numbers.

Further opportunities for virtual engagement in mentorship programs at SULS will be also available soon in four other programs (SULS will share more information on these soon). Watch out for: Social Justice Mentoring Program, Women's Mentoring Program, Queer Mentoring Program and International Student Mentoring Program. Participating in any mentoring program does not exclude mentors from participating in any other. Feel free to write to SULS if you have any queries or concerns. More information can be found at www.suls.org.au.

It also provides that the Court will ensure strict adherence to government endorsed social distancing restrictions currently in operation and it sets as a general rule a maximum limit of no more than ten persons in a courtroom (including the judge, associate and court staff).

The Association will continue to prioritise the health and safety of court users including the profession and will maintain communication with the Court regarding the practical application of these measures. Members will be kept informed of developments in this regard, and in the meantime can I remind members of the Association’s Protocol for In-Person Hearings while Social Distancing and Protocol for Remote Hearings, which can be found here.

COVID-19: Information for Attending Court

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has today again been updated in terms of recent developments, including the District Court announcement referred to above.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

• a brief chronology of events;

• copies of the costs disclosure and costs agreement;

• copies of all invoices rendered; and

• any relevant correspondence relating to the unpaid invoices.

In addition, there have been minor amendments to the arbitration forms to include the provision for filing in the Federal Circuit Court. The forms are now available on the Federal Circuit Court website, as well as the Family Court website, and include:

• Form 6 - Application for Arbitration

• Form 7 - Application relating to relevant Property or Financial Arbitration

• Form 8 - Application to register arbitration award

• Form 9 - Application to register decree affecting registered arbitration award

• Application in an Arbitration

• Notice of Request to Inspect - Arbitration

• Response to an Application in an Arbitration

• Subpoena in an Arbitration

Historically many Local Court matters listed for hearing turn into a plea of guilty on the day of hearing or are withdrawn by police on the allocated hearing date, which has flow on effects for the Court, practitioners and witnesses. Given current circumstances and the extra time for preparation of matters, practitioners should be in a position to advise of guilty pleas at the time of listing and should proactively facilitate discussions with the prosecutors to limit any required witness attendance.

The following order of priority will apply to Local Court criminal listings:

1. Custody defended hearings where a date had previously been set for hearing;

2. Domestic violence related charges and hearings for bail and non-bail defendants; and

3. Remaining general matters for hearing.

The first steps towards addressing the backlog in defended hearings in the Local Court will involve the use of a combination of physical attendance where it is safe to do so and available technology to manage these matters. It is expected that, initially at least, the accused in custody matters will appear by way of Audio Visual Link hearings in locations where that technology is available.

The Chief Magistrate has indicated to the Association that practitioners will need to make an application to the Court if they consider that it would not be in the interests of justice for a hearing to proceed with the accused appearing via AVL.

Where a custodial matter previously listed for hearing is pending at a Court that does not have access to AVL it will need to be listed at a Court that does have such technology available. The Chief Magistrate acknowledges that this may potentially cause inconvenience to parties.

There is no general prohibition on physical appearances by members in the Local Court. It is a matter for individual practitioners to consider in the light of current public health restrictions and their own health and safety. The Chief Magistrate has indicated that he is satisfied appropriate arrangements will be in place to manage social distancing where legal representatives choose to appear in person. The same considerations apply in relation to witnesses.

Where appropriate functional arrangements for appearance can be made through the use of technology the Court is content to continue to accept appearances remotely.

The Chief Magistrate has also advised that there will be a series of call overs conducted throughout the State to determine the status of in custody defended hearings which have so far been abandoned to a date in August. Those call overs will be conducted in mid-June 2020 as status hearings.

Each Local Court having access to Audio and Audio Visual technology will advise the parties of the chosen date. The Chief Magistrate has emphasised that practitioners should use their best efforts to ensure that they have consulted their clients and are ready to proceed on the day of the status hearing, which would greatly assist the Court.

It goes without saying that the Local Court is the busiest jurisdiction in the State. It also needs to be recognised that the Court has been hugely under-resourced for a long period of time and efforts by the profession and the Court to have this issue properly addressed by bringing it to the attention of Government have fallen on deaf ears. In the current environment it is more important than ever that this issue be addressed urgently.

Members in defended matters are also encouraged to be proactive in ensuring that the prosecution have allocated all summary hearings in order that discussions can be facilitated at the earliest possible time.

I join with the Chief Magistrate in strongly encouraging members, wherever possible, to resolve matters well in advance of any listing.

I ask all members with a Local Court criminal practice to use their expertise to assist the Local Court towards a return to normal activity at this challenging time.

Coroner’s Court at Lidcombe

In other news from the Court, the Chief Magistrate has also advised that, after discussions with the State Coroner and the establishment of appropriate control mechanisms with the assistance of Health authorities, listings at the Coroner’s Court in Lidcombe will commence on 1 June 2020.

COVID-19: Information for attending Court

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements (link) has today again been updated in terms of recent developments.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

The IATC hopes to develop and present further sessions on advocacy on a paid platform very soon and we will appreciate your support for this venture.

Kindly note that no recording of the event is permitted via any means at any time. No part of the event content may be used/reproduced in any form without the consent and approval of the IATC.

The webinar can be accessed here with the password 7a$4X.=0

The link is valid for 7 days.

If you missed out on the seminar, it is now available on-demand via CPD Online.

If you would like to contribute to the Associations webinar program. please complete the CPD suggestion form available here.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

The DRS will be holding a webinar briefing session on how to access and use the Legal Portal on at 1pm on 26 May 2020. You can register to attend here.

Members may also access a recording of the webinar session from 27 May. Learn more about the portal here.