Case Study: When the difference between a barrister and solicitor matters in Court – Jeremy & Taklit [2026] FedCFamC1A 32

Most clients do not think much about the difference between a barrister and a solicitor until that difference suddenly matters.

For clients, this is not just a technical distinction.  If a matter is heading towards court, who is involved – and when- affects preparation, cost and how smoothly the hearing runs.

In many matters, a solicitor manages the case, prepares the evidence and coordinates the matter. A barrister is then brought in for specialist advice, court work and strategic input on difficult issues.

A recent decision of the Federal Circuit and Family Court of Australia is a useful reminder that these roles are not always interchangeable in practice.  In Jeremy & Taklit [2026] FedCFamC1A 32, the Court considered what happened after counsel withdrew shortly before a final hearing and whether the solicitor should be expected to continue the hearing.

The case raised a practical question for any client involved in litigation: if counsel withdraws just before a hearing, can the solicitor be expected to step in and run the hearing without affecting the client’s position?

The deeper question is not just who appears on the day.  It is whether your legal team has been structured in a way that protects you and your case if plans change unexpectedly.

What happened in Jeremy & Taklit?

The case arose out of a family law final hearing.

Two days before the hearing, the barrister briefed to appear advised that he would not be appearing. The solicitor tried to secure replacement counsel but could not find another barrister on such short notice. On the morning of the hearing, the solicitor applied for an adjournment.

The adjournment was refused. The trial judge expected the hearing to proceed and allowed the solicitor only a very short period to prepare. The judge noted that the solicitor was experienced and knew the material.  On that basis, the judge considered he should be able to continue the hearing.  When cross-examination was about to begin, the solicitor reiterated to the Court that he was not ready to run the hearing and could not properly cross-examine the witness.  The judge later made a personal costs order against the solicitor, meaning the solicitor himself, rather than the client, would be responsible for those costs.

What did the appeal court decide?

The solicitor appealed.

The appeal succeeded.  The appeal court did not accept that it was enough simply to point to the solicitor’s experience and familiarity with the file.  The appeal court set aside the personal costs order and dismissed the application for costs that had been made against the solicitor.  The court held that the solicitor had not been given a fair opportunity to respond to the proposed order and that there was no proper basis shown for making that order against him personally. The judgment also contains an observation that is particularly relevant to the difference between barristers and solicitors.

In essence, the appeal court recognised:

• decades of experience did not, by themselves, show that the solicitor had the skill or preparation needed to cross-examine a witness on such short notice
• that the distinction between solicitors and barristers exists for good reason.

Why does this matter?

In practice, this affects whether a hearing proceeds as planned, how well witnesses are tested, and whether the client’s case is presented as effectively as it could be.

This case does not mean that a solicitor can never appear in court.

But it does show that a solicitor who knows the file well is not automatically in the same position as a barrister briefed to run the hearing.

Running a contested hearing, especially where witnesses need to be cross-examined, is a distinct skill.  Preparation, experience and time all matter.  This case is a reminder that those differences are real, and they affect what is fair to expect of a legal representative at short notice.

For clients, this distinction is important.  It helps explain why a matter may involve both a solicitor and a barrister, and why bringing a barrister in at the right time is an important and strategic part of case preparation rather than an unnecessary (and expensive) extra step.

What does this mean for clients in practice?

If your matter is likely to proceed to a hearing, one of the practical questions is whether a barrister should be briefed and, if so, when.

That will depend on the type of matter, the court, the issues in dispute and what is likely to happen at the hearing.  Sometimes, it makes sense for the solicitor to appear without a barrister.  But in most cases, and especially where witnesses, complex evidence or extensive court work are involved, it is important to involve a barrister well before the hearing date.

In most matters, involving a barrister at the right time is more efficient overall and helps ensure your case is properly prepared for hearing.  This can place you in a stronger position at hearing.

How Argyll Law works with barristers

One of the practical lessons from this case is that hearing preparation should not be left too late.

At Argyll Law, we plan for the hearing from an early stage of the matter.  That includes thinking about who will run the advocacy, what preparation will be required and when a barrister should be involved so there is time to prepare properly.

Where a matter is likely to involve substantial hearing work or specialised advocacy, we involve a barrister early so the litigation strategy is developed by the team who will actually be running the case.

For clients, that means clearer planning, a more cohesive legal team and a better understanding of who is responsible for each part of the matter.

This case highlights why we involve barristers early and work as a coordinated team throughout the matter.  When your solicitor and barrister are aligned on strategy, preparation and advocacy, your case is better protected, and you are in the strongest position to achieve a good outcome.

Looking for the broader explanation?

If your matter may be heading towards court, it is worth getting early advice about how it is likely to run and who should be involved.  That makes a significant difference to preparation, cost management and overall strategy.

This case study looks at what can happen when the difference between a barrister and a solicitor becomes important in a real hearing.

If you are looking for a broader explanation of the difference between barristers and solicitors in Australia, you can read our main article on that topic here.

You can also watch our video on the difference between barristers and solicitors here.