An Advocate's Duty to the Court

Tax Bar Association Ethics Seminar Series

Jennifer Batrouney Q.C.[1]15 March 2016

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A paper delivered nationally via the Federal Court as part of the Tax Bar Association Ethics Seminar Series on 15 March 2016

I. Admission as an Officer of the Court

On the first sitting day of every month the Supreme Court conducts a number of admission ceremonies whereby fresh faced young people are "admitted to the legal profession as an Australian Lawyer and as an officer of [the Supreme] Court".

This is not a mere formality – the obligations of a lawyer to the court are fundamental and pervade every aspect of practice as a lawyer.

As this is a Tax Bar Association presentation, I will focus on the lawyer's duties as an advocate, although there are, of course, like obligations on solicitors. Criminal advocates are subject to a number of further obligations which I will not cover in this presentation.

The duties of an advocate can be found in three main sources:

1. The advocate's "common law" obligation to the court;

2. The advocate's duty to the court under the Legal Profession Uniform Conduct (Barristers) Rules 2015 ("The Barristers Uniform Conduct Rules"); and

3. The advocate's statutory duties under civil procedure legislation.

It has been said that "since time immemorial, the courts have assumed the inherent power to impose these duties"[2] and that the second and third of these sources are merely part of an ongoing process of codifying what were previously basic ethical principles.[3]

In the time available to be I can do not more that put a few signposts along the road to put my audience upon a train of further enquiry.

II. The Advocate's "Common Law" Duty to the Court

In Giannarelli's case Mason CJ explained that:

The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client's case.

…The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. … [A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.[4]

Justice Ipp (writing extra judicially) has also observed that:

This general duty requires counsel to present the issues as clearly and economically as possible and, in appropriate circumstances, to co-operate so as to avoid needless disputes. Breaches will result when lawyers waste time, and are guilty of prolixity and repetition, and when the use of aggressive and discourteous tactics lead to the incurring of delay, inconvenience and needless cost. Lawyers who fail to adhere to rules and practices laid down to speed up litigation may thereby breach their duty to the court.[5]

Many of these general duties have been codified in the Barristers Uniform Conduct Rules.

III. The Advocate's Duty to the Court under the Barristers Uniform Conduct Rules

The Barristers Uniform Conduct Rules commenced on 1 July 2015 and cover (amongst other things):

  • Duty to the court
  • Duty to the client
  • Duty to the opponent; and
  • Efficient administration of justice.

The Rules are prefaced with a number of "principles", the first of which is that 'barristers owe their paramount duty to the administration of justice'.[6]

They go on to state that a barrister has an overriding duty to the court to act with independence in the interests of the administration of justice[7] and must not deceive or knowingly or recklessly mislead the court.[8]

The barrister's duty to the client is 'to promote and protect fearlessly and by all proper and lawful means' the client's best interests to the best of the barrister's skill and diligence, and to do so without regard to the barrister's own interests.[9] The barrister must also ensure that the client has a sufficient understanding of the case to be able to give proper instructions[10] and must inform the client of ADR options.[11]

The barrister's duty to his or her opponent is not to knowingly make a false or misleading statement to them in relation to the case[12] and (other than in certain specified circumstances) not to communicate to their client or the court without their knowledge.[13]

Finally, a barrister must ensure that his or her work is performed in a manner that will:

(a) confine the case to identified issues which are genuinely in dispute;

(b) have the case ready to be heard as soon as practicable;

(c) present the identified issues in dispute clearly and succinctly;

(d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client's interests which are at stake in the case; and

(e) occupy as short a time in court as is reasonably necessary to advance and protect the client's interests which are at stake in the case.[14]

We will see that these particular obligations are mirrored in the Model Litigant Guidelines and elsewhere.

IV. The Advocate's Statutory Duties

The third source of duties is the advocate's statutory duties. The case management provisions in the Federal sphere are in Part 5B of the Federal Court of Australia Act 1976.

Section 37M of that Act provides that:

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Court;

(b) the efficient use of the judicial and administrative resource available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

This "proportionate" aspect has been taken up with a vengeance in the UK (as a result of the Jackson reforms). However, somewhat controversially, this has also resulted in a plethora of satellite litigation revolving around cost sanctions.[15]

In the time available to me, I cannot set out the remaining provisions of Part VB of the Federal Court of Australia Act 1976 but suffice to say, they make it crystal clear that the court expects parties and their advisors to comply with the overarching purpose and has the power to order indemnity and personal costs in the event of any failure to so comply.

Moreover, there are similar provisions to Part 5B in the State Courts such as the Civil Procedure Act 2005 in NSW and the even more directive requirements in Chapter 2 of the Victorian Civil Procedure Act 2010 in section:

16 - a paramount duty to the court in the administration of justice;

17 -to act honestly;

18 -to have a proper basis for any claim or response to a claim made in a proceeding;

19 -not to take any step in a proceeding unless that step is necessary to facilitate the resolution or determination of the proceeding;

20 -to co-operate;

21 -not to mislead or deceive;

22 -to use reasonable endeavours to resolve the dispute including by use of ADR;

23 -to narrow the issues in dispute;

24 -to ensure that costs are reasonable and proportionate;

25 -to minimize delay;

26 -to disclose the existence of documents; and

27 -to only use disclosed documents for appropriate purposes.

I also note, in this regard, the obligation of the parties to most (but not all) disputes in the Federal Court to file a "Genuine Steps Statement" under Rule 8.02 of the Federal Court Rules 2011. Although the failure to file such a statement does not invalidate the proceeding,[16] again – it is clear that a lawyer can be ordered to pay cost personally[17] in the event that he or she does not advise the client of the requirement to file a genuine steps statement or assist them to comply with that requirement.[18]

It has recently been said of the NSW Civil Procedure Act that:

The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'.[19]

We have recently seen a number of instances where the Courts have given teeth to these Civil Procedure requirements. These have been collated in a comprehensive paper authored by O'Callaghan QC and Tran of the Victorian Bar.[20]

It seems that, despite these obligations, we lawyers do not always play nicely together. In one of the Rinehart decisions, Justice White quoted a letter from one law firm to another before saying:

One of the fundamental ethical duties of a solicitor is to be courteous in all dealings in the course of legal practice … If the practice of law is to be regarded as a profession it should go without saying that courtesy should be shown as a mark of respect in dealing with professional colleagues. Discourteous conduct is likely to increase tensions, inflame disputes and bring the administration of justice, in its wider sense, into disrepute. As has been said:

Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society … Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.

When such uncivil behaviour comes to the attention of the court it should be noticed and condemned.[21]

Writing extra-judicially, one Judge of the Supreme Court has described the Victorian Civil Procedure Act as now holding a "fundamental position … in the Victorian civil litigation system."[22] His Honour went on to say that:

No longer can it be the case that practitioners can hold the mistaken belief that the obligations under the Act are merely aspirational rather than obligatory, nor should a practitioner feel that the provisions are generalities that operate as merely a gentle touch in the direction of the pursuit of justice.[23]

V. Conclusion

Although the various overriding obligations have, in fact, always existed[24] they have been codified and they are now being applied rigorously by the courts exercising their various powers in relation to costs.[25] There seems little doubt that on many occasions such powers are being wielded in order to effect cultural change in the manner in which litigation is conducted. [26]

[1] The author thanks Matthew Caldow for his assistance in preparing this paper.

[2] D A Ipp, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63, 63.

[3] Chief Justice T F Bathurst, 'Duties to the Court, Duties of the Court' (Speech delivered at the Law Society Planning Conference, Bowral, 14 Nov 2014) [30].

[4] Giannarelli v Wraith (1988) 165 CLR 543, 556.

[5] D A Ipp, Above n 1, 106.

[6] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 4.

[7] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 23.

[8] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 24.

[9] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 35.

[10] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 37.

[11] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 36.

[12] Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 49-51.

[13] Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 52-56.

[14] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 58.

[15] Chief Justice T F Bathurst, above n 2, [38]-[48].

[16] Civil Dispute Resolution Act 2011 (Cth), s 10.

[17] Civil Dispute Resolution Act 2011 (Cth), s 12(3).

[18] Civil Dispute Resolution Act 2011 (Cth), s 9.

[19] McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308, [26] (Allsop P).

[20] David J O'Callaghan QC and Christopher Tran, 'The Civil Procedure Act in 2015-2016' (paper delivered to the Law Institute of Victoria, 2 March 2016).

[21] Rinehart v Rinehart (2015) 108 ACSR 415, 425 [27]-[28].

[22] Justice C Croft, 'Lifting the Standard of Conduct under the Civil Procedure Act' (2014) 88 Australian Law Journal 380, 380.

[23] Ibid.

[24] Director of Consumer Affairs Victoria v Scully (No 2) [2011] VSC 239, [22].

[25] Ken Tugrul v Tarrants Financial Consultants Pty Limited (No 5) [2014] NSWSC 437, [69], [77], cited in Chief Justice T F Bathurst, above n 2, [27].

[26] Chief Justice T F Bathurst, above n 2, [19].