Be Prepared: Are you ready to Act and do you have the right to act
“A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity”
s.55B(3) Judiciary Act 1903 (CTH)
For those of us who have been in practice for many years, the signing of the Register of Practitioners for the Federal Court may be a distant memory. However, the recent decision of Schur & Urbina [2024] FedCFamC1F374 has restated the importance of this step in the registration of all legal practitioners.
In Schur & Urbina a Final Hearing for parenting Orders was listed by Johns J in early May 2024, however following the first day it became evident that the Barrister employed for the Wife was ill-prepared to act, not only from a matter perspective but, in an extraordinary twist, the Barrister was not registered to act in the Federal Court.
In this matter counsel for the mother indicated they had been unable to read all of the documents in the matter before the commencement of proceedings due to a lack of time, a position which the Court criticised. Counsel had also booked themselves into 2 matters at the same time which also drew criticism.
The conduct of counsel gave rise to suspicions from the Court regarding counsel’s being listed on the High Court Register of Practitioners. The Court made the necessary enquiries and it was revealed that the Barrister was not entitled to act in the Federal jurisdiction.
Other issues that arose in the matter
The conduct of the Barrister for the wife drew criticism on many fronts in this short but impactful judgement.
Of note:
- Counsel admitted they had not read all of the material. Counsel had read limited material and only perused significant documents.
- Counsel indicated that they were only engaged for the purpose of cross-examination of the other party, whilst this was not explored at length in the judgement the Court certainly questioned the capacity of Counsel to act in circumstances where he had not read the material.
- Counsel had taken a brief in another Court on the same day.
- Counsel refused to re-appear at the request of the Court at a time earlier than the originally adjourned time.
The Court made an order for the National Judicial Registrar of the FCFCOA to refer the matter to the Office of Legal Services Commissioner to investigate conduct of the Barrister in the proceedings.
Key Takeaways
- Do not take on work that you do not have the capacity to service. A lack of time will not be accepted by the Court as a reasonable excuse.
- Do not try to appear in multiple courts and multiple matters on the same day. There is no requirement for the Court to accommodate your time in circumstances where you are seeking to in multiple Courts or matters.
- Remember you are an Officer of the Court and you are obliged to act in a manner which serves the Court.
