Barristers’ Conduct Rules and Duty to the Court

Rule 25 – 36 of the Bar Association of Queensland – Barristers’ Conduct Rules relate to the duties owed to the Court.  These include such matters as acting with independence in the interest of the administration of justice: r.25, not deceiving or knowingly or recklessly misleading the Court: r.26, making concessions with regards to the opponent’s evidence, case law or legislation: r.28, ex-parte applications: r.29, advising the Court of binding authority and applicable legislation that is on point and against the client’s case: r.31, and informing the Court of any misapprehension that it may hold as to the effect of an order: r.36.  The understanding and prudent application of such matters is fundamental to the practice of a barrister.  To assist, below are some annotations with respect to a number of these rules.

Rule 25 – Act with independence in the interests of the administration of justice

1. A barrister’s duty to the court is paramount and must be performed even though to do so is contrary to the interests or wishes of the client[1]. The barrister can do nothing that would obstruct the administration of justice by:

(a) deceiving the court;(b) withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas;(c) abusing the process of the court by preparing or arguing unmeritorious applications;(d) wasting the court’s time by prolix or irrelevant arguments;(e) coaching clients or witnesses as to the evidence they should give; or(f) using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.[2]

2. Westlaw (Thomson Reuters) in ‘The Laws of Australia’ says:[3]

A barrister owes a duty to the court … to conduct litigation with due propriety.

Absolute probity is required of both solicitors and barristers. All advocates owe a duty to the court to assist in ensuring the proper administration of justice.[4] …

Counsel’s overriding duty to the court influences whether a particular witness will or will not be called or whether or not a particular question will or will not be asked.[5] By reason of counsel’s paramount duty, the court must not be misled, unjustifiable aspersions should not be cast on any party or witness, and documents or authorities which detract from the client’s case should not be withheld. The paramountcy of the duty to the court requires that it apply even if the client gives instructions to the contrary.[6]

3. In the ‘Solicitors Manual’ (LexisNexis), Dal Pont says:[7]

The administration of justice depends, and the court relies, on the faithful exercise by lawyers of an independent judgment in conducting and managing litigation. Thomas J explained the point in Kooky Garments Ltd v Charlton as follows:[8]

The court is entitled to assume that solicitors and counsel appearing before it possess that independence … As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called into question … [The integrity of the judicial process] is undermined if solicitors or counsel [do not] possess the objectivity and independence which their professional responsibilities and obligations to the court require … of them.

4. Dal Pont says further in the Solicitors Manual:[9]

A lawyer must not mislead the court as to law. As both a participant and an assistant to the court in the administration of justice, he or she “must do what they can to ensure that the law is applied correctly to the case”.[10] Candour in the presentation of the law has, to this end, various aspects, including the following:

• a duty not to misrepresent the law;

• awareness and understanding of the applicable law and procedure;

• a duty to bring to the court’s attention relevant authority, whether for or against the client’s cause[11];

• a duty to assist the court or judicial officer in understanding and applying the law.

5. In his seminal article, ‘Lawyers’ Duties to the Court’[12], Justice Ipp classified the duties under four categories:

(a) the general duty of disclosure owed to the court;

(b) the general duty not to abuse the court’s process;

(c) the general duty not to corrupt the administration of justice; and

(d) the general duty to conduct cases efficiently and expeditiously.

6. The first three are said to derive from the public interest that dishonest, obstructive or inefficient practices not destroy the administration of justice.[13] The fourth duty reflects current community attitudes and standards[14].
7. A barrister’s duty is personal and, where junior and senior counsel appear, the court is entitled to expect that each counsel is responsible for the preparation and presentation of the client’s case[15].
8. Dal Pont says further in the text ‘Professional Responsibility and Legal Ethics in Queensland’[16]:

There is authority that a practitioner should exercise a degree of mild scepticism to a client’s narrative.  If in doubt about the truth of the client’s instructions, the practitioner should press the client, and if significant suspicion that the court is to be mislead persists, then the practitioner should withdraw from the case: see Kavia Holdings Pty Ltd v Werncog Pty Ltd.[17]  Santow J observed in that matter that:

[W]hether and how far legal professional privilege would then preclude disclosure to the Court, perhaps in very general terms, of the reason for ceasing to act, is a question for the future.  Absence of that minimal disclosure leaves the Court at risk of being misled by the recalcitrant party and its new and potentially uniformed legal advisors.[18]

9. In the context of modern principles of case management, it has been said that it is no longer open to counsel to argue every point indiscriminately; rather, the paramount duty to the court is to advance only points that are reasonably arguable[19]. In Giannarelli v. Wraith[20] Mason C.J. said[21]:

“A barrister’s duty to the court epitomises 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 every burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of [an] independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.”[22]

10. Justice Ipp put it this way[23]:

This does not mean that counsel must determine which points are likely to succeed and refrain from presenting or arguing any others (although that might be excellent advocacy); on the other hand, it does mean that counsel must determine which points are reasonably arguable, and must jettison the rest. This approach is not radically different to what has been said in past times, it merely requires counsel not to waste public resources on points that are in his judgment bound to fail.

11. On the other hand, in dealing with the situation of the “hopeless case”, his Honour expressed the view that if counsel could not “form the certain opinion” that the case was hopeless, and informs the client of the risk involved, advises the client most strongly not to proceed, and the client still insists on going on (without having any ulterior motive), counsel would commit no breach in taking those instructions[24].
12. The Full Court of the Federal Court in Dyczynski v Gibson[25] summarised the position, after quoting from Mason CJ’s judgment in Giannarelli, as follows[26]:

Counsel have a duty to assist the court “by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner”: Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 at 453; [1992] 2 All ER 486 at 493.

Thus it may be accepted that the performance of the duty to exercise an independent judgment as to the manner in which a retainer is performed is not to be confined by instructions from the client. The client does not instruct counsel as to how to undertake the professional obligations regarding the conduct of a case in court, including by confining the case where considered appropriate. Indeed, a client is not able to provide instructions that require a lawyer to fail to exercise the independent forensic judgment required to perform the obligations we have described. It would be an abuse of process for a client to seek to direct a lawyer to act contrary to those professional obligations and instead to act only at the direction of the client rather than by exercising independent professional judgment. The administration of justice by the courts depends to a considerable degree upon lawyers conforming to their obligation to exercise independent judgement as to all forensic decisions in executing the overall instructions of the client. It is for those reasons that it is said that the duty to the court is paramount and those duties must be complied with even though to do so may be contrary to the interests or wishes of the client: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [111]-[113] (McHugh J). Properly understood, a client has no interest recognised by the law in being able to instruct a lawyer to act contrary to the obligation to exercise an independent forensic judgment in fulfilment of the duty to the court to do so. Modern principles of case management give effect to these duties by facilitating a collaborative approach to refining issues by eliminating vagueness, imprecision, kitchen sinks, boilerplate and dross.

Relatedly, “it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable”: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24]. But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [92(c)] (McColl JA, with whom Hodgson and Ipp JJA agreed). For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated: Ridehalgh v Horsefield [1994] Ch 205 at 234. The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.

All of those principles sit alongside the fundamental obligation of lawyers to carry out the instructions which they are retained to perform. When it comes to disputes, those instructions will be to sue, to defend, to mediate, to arbitrate, to conciliate, to appeal, to compromise, to enforce a judgment, to petition for bankruptcy and the like. It is not for a lawyer, holding those instructions, to decide not to carry them into effect based upon a view as to whether there is a basis to do so and thereby repudiate the terms of the lawyer’s retainer. And that is the contention that lies at the base of Mr Barry and Mr Rowe’s submission.

Rather, a lawyer who forms the view that there is no proper basis to carry out the instructions or no reasonably arguable position to advance must terminate the retainer on that basis. The client may then seek other advice or choose to act in person. While the retainer is on foot a lawyer has no authority to abandon it by, for example, conceding a case as happened in the present case. Further, it is not for lawyers to act without consulting and conferring with their clients (or barristers with their instructing solicitors) about the course they are proposing to take. Clients are entitled to have the proceedings explained to them. So far as circumstances allow, clients are also entitled to have their instructions obtained regarding significant aspects of carrying out the retainer and to have those views considered before lawyers perform their obligation to exercise their independent forensic judgment.

Rule 26 – Not deceive or knowingly or recklessly mislead the Court 

13. At common law, counsel is under a duty not to ‘keep back from the court any information which ought to be before it’ and counsel ‘must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court’[27].
14. The duty not to mislead the court was considered by the Victorian Court of Appeal in Forster v Legal Services Board[28]. Kyrou AJA (Weinberg and Harper JJA agreeing) said[29]:

In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the court and thereby breach his or her duty to the court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.

Misleading the court by presenting a misleading or false document is contrary to the lawyer’s duty of honesty and candour, including in his or her capacity as a litigant. In Law Society of New South Wales v Foreman, the New South Wales Court of Appeal ordered that the respondent be removed from the Roll of practitioners, because she had knowingly presented a falsified document to the court on the basis that it was genuine. Mahoney JA stated that:

A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366at 382 and 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.

In Myers v Elman, Viscount Maugham said that: “A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record.“ Similarly, in Foreman, Giles AJA stated that the respondent’s failure to reveal and correct the conduct by which the court had been misled, compounded the unacceptable conduct involved in preparing the falsified document.

15. The ‘Solicitors Manual’ (LexisNexis) by Dal Pont says:

As an officer of the court … which involves assisting the court in the administration of justice — the lawyer must be able to command both the confidence and the respect of the court.[30] The court can hardly have confidence in an assistant that is not duty bound, and who does not exercise the duty, to be honest and candid with the court.[31]

16. Dal Pont in his text “Lawyers’ Professional Responsibility”[32], refers to the comments of Parker J in Kyle v Legal Practitioners Complaints Committee[33]:

The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of counsel or of those whom the counsel represents.  No instructions of a client, no degree of corner for the client’s interests, can override the duty which counsel owes to the court in this respect.  At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwaverable observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.

17. Further, Dal Pont says:

….. wilfully misleading the court has been judicially described as “outrageously dishonourable” and, as such, deserving of severe disciplinary action.[34]

18. With reference to solicitors, Atkinson J said in Perpetual Trustee Company Limited v Cowley & Anor [2010] QSC 65:

[17] A legal practitioner’s duty to the court and therefore to the public administration of justice imposes duties of honesty, candour and integrity. A legal practitioner may not intentionally mislead the court. If it comes to the legal practitioner’s attention that the he or she has unintentionally misled the court then the duty of the legal practitioner is to inform the court to correct the error. As Viscount Maugham said in Myers v Elman:[35]

“A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes to the court to put the matter right at the earliest date, if he continues to act as solicitor upon the record.”

19. The ‘Solicitors Manual’ (LexisNexis) by Dal Pont says:[36]

As a general principle, defence lawyers have no duty to disclose to the court material adverse to the client’s interests of which the prosecution is unaware, and in fact should not do so unless instructed by the client[37] … although the lawyer is not bound to disclose the client’s previous convictions, “he must not suggest that his client is a man of good character”.[38]

20. While there is no obligation on counsel to assist an opponent, counsel must be careful to ensure that the court is not misled. There is a distinction between actively misleading and passively standing by and watching the court be misled. Lord Diplock in Saif Ali v Sydney Mitchell & Co[39] said, at p. 220:

A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister’s knowledge.

21. Stuart-Smith LJ in Vernon v Bosley (No 2)[40] discussed the distinction and said:

In Tombling v. Universal Bulb Co. Ltd. [1951] 2 T.L.R. 289, 297 Denning L.J. said:

“The duty of counsel to his client in a civil case — or in defending an accused person — is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it comes to his speech, he must put every fair argument which appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty.”

The classic examples of the distinction is the case where the barrister knows that his client has previous convictions, but the court and prosecution do not. He is not under an obligation to disclose the convictions, but he must not suggest that his client is a man of good character. Similarly there may be several witnesses who can speak as to a certain matter of fact. Some may support one side, the others the opposite case. Neither the litigant nor his lawyers are bound to call in a civil case those witnesses who do not support their case.

But where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto.

Rule 27 – Correct any misleading statement

22. Dal Pont in his text “Lawyers’ Professional Responsibility”[41] refers to the decision of Vernon v Bosley (No 2)[42], and the comments in the same by Stuart-Smith LJ as follows:

[W]here the case has been conducted on the basis of certain material facts which are an essential part of the party’s case… which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of [the] case[43].

23. Dal Pont also refers to half-truth’s and says as follows:[44]

Lawyers must eschew statements or conduct that are half-truths, or otherwise leave the court with an incorrect impression.  The observations of Cullen CJ in Re Thom are instructive in this context:[45]

It is perhaps easy by casuistical reasoning to reconcile one’s mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure.  By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it.  For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.

Rule 29 – Full disclosure in ex parte applications

24. Justice Gageler made the following observation in Aristocrat Technologies Australia Pty Ltd v Allam[46]:

[15] It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested. (emphasis added; footnotes omitted)

25. In Mineralogy Pty Ltd & Anor v The State of Western Australia[47] Martin J provided a detailed review of this topic when his Honour said, inter alia:

[86] A court will be astute to deprive an applicant of any advantage it may have obtained by proceeding ex parte without disclosing all material facts to the court. The duty to disclose must be complied with “on pain of a penalty that the order will be set aside.”[48]

[87] In Garrard v Email Furniture Pty Ltd (“Garrard”),[49] Mahoney AP expressed the consequences of a failure to comply with the duty in this way:

“It is, in my opinion, important that the extent of the duty (“a most serious responsibility”) imposed upon a person applying to a court ex parte be not qualified and that failure to observe that duty be properly sanctioned. … The court should set aside an order or certificate obtained in breach of the rule and should do so with costs. If the party be entitled to the relief following full disclosure, the relief may be obtained upon a subsequent and a proper application.”[50] (emphasis added)

[88] The attitude evinced by courts about the consequences of inadequate disclosure was summarised by Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam[51] …

[89] Garrard was followed by Applegarth J in Heartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers,[52] where his Honour said:

[32] … An ex parte order that is obtained in breach of the duty of disclosure is liable to be discharged without a hearing on the merits. The respondent is prima facie entitled to its discharge. An applicant can apply for a new order. In that regard, some courts have adopted a less severe approach than others. The rationale for the necessity to discharge an order made in the absence of full disclosure was stated in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd:

‘The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.

The principle applies to an application to discharge or dissolve an ex parte interim injunction; the discharge of that injunction does not prevent a fresh application being heard and determined in the light of all relevant facts.’

Accordingly, an aggrieved party which applies to discharge an ex parte injunction that was obtained without full disclosure is prima facie entitled to have the injunction discharged even if the Court takes the view that the order would probably have been made even if there had been full disclosure. The merits of the applicant’s case for a freezing order may be relevant to the discretion to grant a new order.” (citations omitted, emphasis added)                                 ….

[92] That the court turns its face against an applicant that has failed to adequately discharge its duty has been made clear. In the usual case, such an applicant will be required to bring a new application. This was recognised as long ago as 1835 when, in Attorney-General v Mayor of Liverpool,[53] Pepys MR said:

“A very wholesome rule, it is true, has been established in this Court; that if a party comes for an ex parte injunction, and misrepresents the facts of the case, he shall not then be permitted to support the injunction by shewing another state of circumstances in which he would be entitled to it: because the jurisdiction of the Court in granting ex parte injunctions is obviously a very hazardous one, and one which, though often used to preserve property, may be often used to the injury of others; and it is right that a strict hand should be held over those who come with such applications.”[54]

26. In Queensland, the Full Court in Re South Downs Packers Pty Ltd[55] has said that a non-disclosure will not be material unless it is likely to influence the Court in acceding to the application. Elsewhere, the question of what was a material fact, was considered in Savcor Pty Ltd v Cathodic Protection International APS[56]: to be material, it would have to be a matter of substance in the decision-making process.
27. The Supreme Court of Queensland[57] has also adopted the following succinct description of what a party applying ex parte must do by Allsop J (as his Honour then was) in Walter Raue Neusser Oel Und Fett AG v Cross Pacific Trading Pty Ltd[58], as follows:

That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not misstating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.

28. Dal Pont says in his text “Lawyers’ Professional Responsibility” with respect disclosure on ex parte applications[59]:

The unique nature of ex parte applications in an adversarial system demands especial candour on behalf of applicants to avoid an abuse of the court’s processes.  An ex parte applicant, to fulfil this duty, must supply “the place of the absent party to the extent of bringing forward all material facts which that party would presumably have brought forward in his defence to that application”.[60]  Lawyers on ex parte applications must, therefore, display the utmost fairness and good faith, and see that all relevant matters, for and against the application, are brought to the court’s attention.[61]

Rule 31 – Inform the court of binding authorities

29. In D’Orta-Ekenaike v Victorian Legal Aid[62], McHugh J said[63]:

Moreover, the advocate owes a duty to the court to inform it of legal authorities that “bear one way or the other upon matters under debate”. The duty applies “quite irrespective of whether or not the particular authority assists the party which is so aware of it. (citations omitted)

30. In the ‘Solicitors Manual’ (LexisNexis) Dal Pont says:[64]

The overriding duty to the court dictates that a lawyer cannot simply ignore case law or legislation that is contrary to his or her client’s cause.[65] In the usual case, the opposing lawyer will bring such case authority or legislation to the court’s attention, but failing this the court should be informed of that authority or legislation. Otherwise, it may proceed to reach the incorrect conclusion, or adopt reasoning that has been previously decreed to be suspect.

31. As Justice Ipp noted in his seminal article, Lawyers’ Duties to the Court[66], in criminal sentencing, it is incumbent on counsel on both sides to make themselves aware of the relevant law, however difficult that may be, and to ensure that the judge is passing a sentence which is one within the judge’s jurisdiction to pass. More generally, it is the duty of both counsel to inform themselves of the extent of the court’s powers in any case in which they are instructed, to know what options are available to the trial judge and to correct the judge if he or she were to make a mistake[67].
32. The text ‘Professional Responsibility and Legal Ethics in Queensland’, by Corones, Stobbs, and Thomas, says:[68]

Both the general law and the relevant professional rules require practitioners to act with candour in the presentation of the law and of the facts relevant to proceedings.  This means that practitioners must not, of course, misrepresent the law to the court.  It also means that they have a duty to assist the court.  This duty requires that advocates need to familiarise themselves with all the relevant primary authorities in relation to the relevant points of law in a matter for the purposes of both properly discharging their duty to their clients, and also to reduce the chances of judicial error.  To not bring to the attention of the court a relevant (and especially a binding) authority could also constitute an appealable legal error and an abuse of court process if done knowingly….

Dal Pont cites Copeland v Smith[69] in this regard, where Brooke L J said:

“The English system of justice has always been dependant on the quality of the assistance advocates give to the bench…English judges are almost invariably in a position to give judgment at the end of a straightforward hearing without having to do their own research… because they can [rely] on advocates to show them the law they need to apply.

ASCR, rr 17 – 34 deal with issues of honesty, candour and frankness in relation to advocates…

A link to the BAQ Barristers’ Conduct Rules can be found here.

[1] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755; [2005] HCA 12, [111] (McHugh J). See also Giannarelli v Wraith (1988) 165 CLR 543; 62 ALJR 611, 555 (Mason CJ) (CLR); Orchard v South Eastern Electricity Board [1987] 1 QB 565; [1987] 2 WLR 102 (CA). See also Dal Pont GE, Lawyers’ Professional Responsibility (Lawbook Co., 4th ed, 2010) Ch 17. See also rules 5(a) and 5(d).

[2] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755; [2005] HCA 12, [111] (McHugh J)

[3] At [27.3.990].

[4] Abse v Smith [1986] QB 536; [1986] 2 WLR 322 (CA), 545–546 (Donaldson MR) (QB).

[5] Swinfen v Lord Chelmsford (1860) 5 Hurl & N 890; 157 ER 1436, cited with approval in Giannarelli v Wraith (1988) 165 CLR 543; 62 ALJR 611, 555–556 (Mason CJ) (CLR).

[6] Giannarelli v Wraith (1988) 165 CLR 543; 62 ALJR 611, 556 (Mason CJ) (CLR)

[7] At [21.005].

[8] Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590. Thomas J’s observations were adopted by Mandie J in Grimwade v Meagher [1995] 1 VR 446 at 452.

[9] At [22.005].

[10] Re Gruzman (1968) 70 SR (NSW) 316 at 323 (CA).

[11] See rule 31

[12] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63

[13] Wallersteiner v Moir (No,2) [1975] QB 373 at 402 per Buckley LJ, where the duty was described as a ‘duty to the court to ensure that his client’s case, which he must, of course, present and conduct with the utmost care of his client’s interests, is also presented and conducted with scrupulous fairness and integrity’. See also Myers v Elman [1940] AC 282 at 319

[14] In the context of civil litigation, see rule 5 of the Uniform Civil Procedure Rules 1999 (Qld)

[15] Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd (No 8) [2014] VSC 567 at [135] per Dixon J

[16] 2nd ed, Law Book Co 2014, paragraph [11.50], page 436.

[17] [1999] NSWSC 839.

[18] Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 at [2] per Santow J.  See also D Shirvington, “Going behind Clients’ instructions” (1998) 36 Law Society Journal 32 and DA Ipp, “Lawyers duties to the court” (1998) 114 Law Quarterly Review 63 at 67.

[19] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 99-100

[20] (1988) 165 CLR 543

[21] (1988) 165 CLR 543 at 556-557

[22] Justice Ipp noted that these remarks echo what was said by the High Court of Australia some 15 years earlier in Richardson v The Queen (1974) 131 C.L.R. 116 at n. 123, namely “Counsel have a responsibility to the court not to use public time in the pursuit of submissions which are really unarguable”.

[23] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 100-101

[24] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 85-86

[25] [2020] FCAFC 120; (2020) 280 FCR 583

[26] [2020] FCAFC 120; (2020) 280 FCR 583 at [216]-[220] per Murphy and Colvin JJ

[27] Re Gruzman: Ex parte the Prothonotary (1968) 70 SR (NSW) 316 , 323 . See also Meek v Fleming [1961] 2 QB 366 , and the discussion by John Dixon J of the lawyers’ duty to the court at common law in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567 , [160]–[175]

[28] [2013] VSCA 73 (11 April 2013)

[29] at [161]-[163]

[30] Re Davis (1947) 75 CLR 409 at 420; [1948] 1 ALR 41; BC4700540 per Dixon J; Re Evatt (1967) 67 SR (NSW) 236 at 245 (CA); Re Gruzman (1968) 70 SR (NSW) 316 at 323(CA); Re B  [1981] 2 NSWLR 372 at 381–2 per Moffitt P; New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193 at 204 per Kirby P (“a special role in the administration of justice”).

[31] Re Foster (1950) 50 SR (NSW) 149 at 152 per Street CJ; New South Wales Bar Association v Thomas (No 2)

 (1989) 18 NSWLR 193 at 204 per Kirby P; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56; [1999] WASCA 115 ; BC9904552 at [12]–[14]  per Ipp J; Prothonotary of the Supreme Court of New South Wales v McCaffery  [2004] NSWCA 470 at [53] per McColl JA (“It is impossible to understate the confidence which the courts must be able to place in the candour of those legal practitioners who appear before them”).

[32] 7th ed, Law Book Co 2021, paragraph [17.95], pages 587 – 588.

[33] (1999) 21 WAR 56 at 73.

[34] Re Cooke (1889) 5 TLR 407 at 408 per Lord Esher MR; O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230 per Clarke JA; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at 58 per Ipp J.

[35][1940] AC 282 at 294.

[36] At [22.045.20].

[37] R v Rumpf [1988] VR 466 at 472 per McGarvie J; Vernon v Bosley (No 2) [1999] QB 18  at 38  per Stuart-Smith LJ.

[38] Vernon v Bosley (No 2) [1999] QB 18 at 38 ; [1997] 1 All ER 614 at 631 per Stuart-Smith LJ.

[39] [1980] AC 198

[40] [1999] QB 18

[41] 7th ed, Law Book Co 2021, paragraph [17.100], pages 589.

[42] [1999] QB 18

[43] [1999] QB 18 at 38

[44] At paragraph [17.115], page 591

[45] Re Thom (1918) 18 SR (NSW) 70 at 74 – 75.  See also Forster v Legal Services Board (2013) 40 VR 587 at [161], [162] per Kyrou AJA, with whom Weinberg and Harper JJA concurred; Harle v McGarvie [2015] VSC 697 at [91] – [93] per Zammit J; Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1 at [214], [215] per Blue J, at [427] – [436] per Stanley J (revd but not on this point:  Clone Pty Ltd v Players Pty Ltd (recs and mgrs. Appt) (in liq) (2018) 264 CLR 165).

[46] (2016) 149 ALD 232; (2016) 327 ALR 595; (2016) 90 ALJR 370; [2016] HCA 3

[47] [2020] QSC 344 (25 November 2020).

[48] Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 at 648 [25] per Gillard AJA.

[49] (1993) 32 NSWLR 662.

[50] Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678.

[51] [2016] HCA 3; (2016) 327 ALR 595.

[52] [2009] QSC 195;  [2009] 2 Qd R 499.

[53] [1835] EngR 1042; (1835) 1 My & Cr 171, (1835) 40 ER 342.

[54] Attorney-General v Mayor of Liverpool [1835] EngR 1042; (1835) 1 My & Cr 171 at 210-211[1835] EngR 1042; , (1835) 40 ER 342 at 355-356. Considered in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 682-683. Followed in Iqnet Pty Ltd v Schleeman [2001] WASC 236. Not everything that Pepys MR said still holds true, eg, that the “Court … is bound to know every clause in every Act that ever passed”. He did describe that, though, as “a degree of knowledge hardly to be hoped for.”

[55] [1984] 2 Qd R 559

[56] (2005) 12 VR 639

[57] Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd [2019] QSC 68 at [62] per Jackson J

[58] [2005] FCA 955 at [38]

[59] 7th ed, Law Book Co 2021, paragraph [17.120], pages 592.

[60] Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682 per Isaacs J.  See also Rybak v Langbar International Ltd [2011] PNLR 16 at [18] – [20] per Morgan J; Williams v Kim Management Pty Ltd [2013] 1 Qd R 387 at [47] – [53] per Dalton J.

[61] See Lord Esher MR in Re Cooke (1889) 5 TLR 407 at 409.

[62] (2005) 223 CLR 1; [2005] HCA 12

[63] at [112]

[64] At [22.020].

[65] Rondel v Worsley [1969] 1 AC 191 at 227–8 ; [1967] 3 All ER 993  per Lord Reid; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 ; 79 ALJR 755; BC200500919 at [112] per McHugh J.

[66] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63

[67] (1998) 114 LQR 63 at 79

[68] 2nd ed, Law Book Co 2014, paragraph [11.50], page 435.

[69] [2000] 1 WLR 1371 at 1376.