INDUSTRIAL ADVOCACY THE MODEL ADVOCATE

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• INDUSTRIAL ADVOCACY THE MODEL ADVOCATE

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SESSION OUTLINE

• Part 1
• general observations
• particular features of advocacy before industrial
  tribunals
• the model industrial advocate
• appellate advocacy
• Part 2
• the course of evidence
• examination in chief
• cross-examination
• re-examination
• unfair dismissal advocacy

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•  
• The task of the advocate is to be argumentative,
  inquisitive, indignant or apologetic - as the
  occasion demands - and always persuasive on
  behalf of the person who pays for his voice. He
  earns his living propounding views to which he
  does not necessarily subscribe, and which are
  sometimes anathema to him, on behalf of clients
  whose conduct may not interest him, will often
  offend him, and can occasionally cause him
  outrage

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THE IMPACT OF REPRESENTATION IN INDUSTRIAL
TRIBUNALS

• Ø  A 1993 UK study found average 30 applicant
  success rate.
• Ø  If employer not represented and applicant was
  legally represented the success rate ? to 48.
• Ø If employer was legally represented and
  applicant was not then success rate ? by 10.

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THE AUSTRALIAN EXPERIENCE OF REPRESENTATION

• A study conducted in 1999 showed that in unfair
  dismissal claims in Victoria 84 of applicants
  and 66 of respondents were represented
• 63 of all claims settled at or before
  conciliation. Where the applicant was
  represented 72 settled
• In both the UK and Australia representation of
  the applicant also had a distinct impact on the
  likelihood of success in jurisdictional matters
• Only 3 of cases went to arbitration with both
  parties being represented in 90 of those.

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MERIT ARBITRATIONS

• In both Australia and the UK applicants succeed
  in 65 of cases
• In the UK representation appears to have an
  impact with the success rate for unrepresented
  applicants falling to 50
• No study in Australia has looked at the
  comparable figures but given the high level of
  representation it is likely to have a less
  significant impact
• As conciliation is not compulsory in UK
  employment tribunals significantly more matters
  proceed to hearing.

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s.42 WR ACT(UNAMENDED)

• Leave may only be granted if
• Ø all the parties consent 
• Ø on application by a party, the Commission is
  satisfied that, having regard to the subject
  matter of the proceedings, there are special
  circumstances making it desirable that the party
  be so represented or 
• on application by a party, the Commissioner is
  satisfied that the party can only adequately be
  represented by counsel, solicitor or agent.

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S.100 WR ACT (AS AMENDED)

• Different provisions apply if representation is
  by consent or not.
• If consent leave may be granted after the
  Commission considers
• Being represented would assist the party to bring
  the best case possible
• The capacity of the particular person to
  represent the party
• The capacity of the particular person to assist
  the Commission in exercising its functions under
  the Act

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S.100 (CONT)

• Where there is no consent in addition the
  Commission must consider
• The complexity of the factual and legal issues
• Whether there are special circumstances making it
  desirable that the party be represented
• In the case of an agent whether the agent is a
  person able to represent the party concerned
  under a State or Territory industrial law.
• There is no right of appeal against a decision to
  grant/refuse leave.

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APPEARING WITHOUT LEAVE

• Parties can be represented without leave by
• An officer or employee
• A member, officer or employee of an organisation
• An officer or employee of a peak council
• A bargaining agent
• In the case of an employing authority by a person
  prescribed by the regulations
• In the case of the Minister, as an intervenor, by
  legal counsel.

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s.110(1) WR ACT (AMENDED)

• (1) In a proceeding under this Act or the
  Registration and Accountability of Organisations
  Schedule

• (a) the procedure of the Commission is, subject
  to this Act and the Rules of the Commission,
  within the discretion of the Commission
• (b) the Commission is not bound to act in a
  formal manner and is not bound by any rules of
  evidence, but may inform itself on any matter in
  such manner as it considers just and
• (c) the Commission shall act according to
  equity, good conscience and the substantial
  merits of the case, without regard to
  technicalities and legal forms. 

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NOT BOUND BY THE RULES OF EVIDENCE

• WA Meat Commission v AMIEU (WA Branch) (1993) 73
  WAIG 2655 at 2656
• this is not licence to ignore the rules. The
  rules of evidence provide a method of inquiry
  formulated to elicit the truth and to prevent
  error. They cannot be set aside in favour of a
  course of inquiry which necessarily advantages
  one party and necessarily disadvantages the
  opposing party. The common law requirement that
  the Commission must not in its reception of
  evidence deny natural justice to any of the
  parties acts as a powerful control over a
  tribunal which is not bound by the rules of
  evidence.

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NOT BOUND BY THE RULES OF EVIDENCE

• King v Freshmore (Vic) Pty Ltd, Print S4213, 17
  March 2000 per Ross VP, Williams SDP and Hingley
  C application of the rule in Browne v Dunn
• Tomayo V Alsco Linen Service Pty Ltd 1997
  Print P1859 per Ross VP, Drake DP and Cargill C
  application of the rule in Jones v Dunkel

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BAR TABLE STATEMENT

• Assertions of fact made by an advocate, in the
  absence of an objection from the other side, may
  be treated as evidence of the asserted facts.
• R v The Commonwealth Conciliation and Arbitration
  Commission Ex parte Melbourne and Metropolitan
  Tramways Board (1965) 113 CLR 228 at 243 per
  Barwick CJ.

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THE MODEL ADVOCATE

• Preparation
• ? Get the Facts Straight
• ?The importance of the conference with your
  client/member/instructor cannot be overemphasised
• ?Assume statements will be challenged
• ?Try to predict what the other side will say
• ?Instructions are not evidence. The facts will
  need to be established.

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THE MODEL ADVOCATE

• 1. Preparation
• Get the Law Straight
• ?Be familiar with the relevant sections.
• ?Are there any other relevant provisions?
• ?Are there any relevant decisions?

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THE MODEL ADVOCATE

• 1. Preparation
• Preparing the Argument
• ?What do you need to establish?
• ?What is the best way to establish it?
• ?What are the strengths and weaknesses of your
  case?
• ?What is the outcome you are seeking to achieve?

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THE MODEL ADVOCATE

• 2. Using Notes
• ?Unless you are a very experienced advocate it is
  wise to have them
• ?Dont use a prepared speech it suggests you
  dont know what you are talking about.
• ?Be prepared to diverge from what you have
  prepared in response to questions from the bench
  or an argument you were not anticipating from the
  other side.

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THE MODEL ADVOCATE

• 3. Prior to the Hearing
• Introduce yourself to the associate if you dont
  already know him/her.
• Indicate how long you are likely to take be
  realistic.
• Find out about the member before whom you are
  appearing from observation or colleagues. What
  is she/he likely to expect from you?

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THE MODEL ADVOCATE

• 4. Presentation
• Use the correct form of address.
• Dont say I think, I believe or in my
  opinion you are not having a philosophical
  debate with the bench.
• Listen to the Bench. If you are asked a question
  you must deal with it or seek leave to return to
  the matter after obtaining instructions etc.
• Treat your opponent, the Bench and witnesses with
  respect.

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THE MODEL ADVOCATE

• 5. Structure
• Identify the probable concerns of the tribunal or
  the difficulties with the case choosing not to
  address a particular issue or difficulty is not
  really an option.
• Tell the Bench what the application is directed
  towards i.e. what are you trying to achieve?
  And why?
• Establish what the tribunal can and cannot do.
• Try to appear comfortable with the material but
  not too relaxed!

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THE MODEL ADVOCATE

• 6.Organisation
• Have a plan of your presentation and organise
  your material in that order ferreting about to
  find things looks unprofessional.
• Have multiple copies of documents and cases you
  intend to cite
• Dont read out long passages from a decision
  assume the Bench can read.
• Dont simply read out submissions already before
  the Bench
• Have prepared draft orders.

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THE MODEL ADVOCATE

• The opening is very important. As Mason J has
  observed All too often counsel fail to
  take advantage of the unique opportunity
  presented by the opening to make an impact on
  the minds of the judges before they begin to move
  forward on their inexorable journey to a
  conclusion.

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THE MODEL ADVOCATE
7. Honesty AFMEPKIU v Energy Developments Pty
Ltd, Print M9753

• Ø Persons appearing before the Commission have a
  duty to ensure that there is full and frank
  disclosure of all matters which are relevant to
  the proper determination of the matter before the
  Commission.

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• Ø If the outcome of the proceedings in question
  might conceivably have been different if
  disclosure had taken place the Commission may act
  to set aside the act or decision in question.

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• Ø Where the failure to make a full and frank
  disclosure has resulted in a denial of natural
  justice or where legislative or jurisdictional
  requirements have not been complied with the
  Commission may be obliged to set aside the act or
  decision in question.

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THE MODEL ADVOCATE
8. Perspective

• Must be objective and detached from the case you
  are arguing
• Consider the case from the position of the
  decision maker.

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THE MODEL ADVOCATE

• Final Submissions
• Assume the bench has listened to the evidence.
• If you need to summarise evidence in order to
  address the law do so succinctly and without
  exaggeration.
• The closing submission should address
• ?Significant issues of fact which need to be
  determined
• ?the matters the applicant needs to establish
  have they done so?
• ?The relevant law and precedents
• ?Any thing else the other side might raise.

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APPELLATE ADVOCACY

• What can be appealed against? S.120 (1)(a) to
  (f).
• Who can appeal? S. 120 (3)
• What can the Commission do? S.120(7).

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APPELLATE ADVOCACY

• Ø What aspect of the decision is wrong and why?
• Ø What are the consequences and whom do they
  effect?
• Ø what do you want the Commission to do?

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APPELLATE ADVOCACY

• Dont use a scattergun approach to grounds you
  need to be able to defend the basis for each
  ground on which you rely.
• Dont forget to argue why you should be given
  leave to appeal.
• An appeal is not simply an opportunity to rerun
  the same arguments that didnt work the first
  time.