Barristers at every level of practice are encouraged by the Hearsay editorial team to read the article below.  Not only does it inform, and remind, barristers as to the vicissitudes of practice at the Bar – some days you win and some days you lose, and sometimes the losses can be more prevalent – but also of the need to seek help from within and outside the Bar when you can no longer cope and the future seems dark;  notwithstanding a successful practice. Members – including judicial members –  are reminded that your Bar Association of Queensland, under the BarCare scheme, provides free and confidential counselling services with psychologists and psychiatrists of your choice.  To avail of same click here: https://qldbar.asn.au/baq-cms/bar-care

In addition the Association’s panel of Ethics Counsellors – of which the Editor is the chair – is available to provide not just ethical assistance, but also general practice assistance and counselling – all confidential – to Association members who require it:  To avail of same click here: https://qldbar.asn.au/baq-cms/ethics-professional-conduct

The Honourable Justice O’Meara delivered this powerful and inspiring speech at the Victorian Bar Readers’ Dinner in Melbourne on 18 May 2023, highlighting the importance of mental health.

Hearsay has permission from his Honour to reproduce his paper.

This issue – no doubt at the forefront of the minds of our many judicial colleague readers – was pointed up in the recent decision in Bevan v Bingham [1923] NSWSC 19 (7 February 2023).  That – perhaps extraordinarily in terms of the issue at hand – was a dispute between a barrister and a solicitor concerning recovery of fees by the latter against the former.  Bellew J wrote:

[3]          Prior to the hearing, the plaintiff’s solicitor filed with the Court:

(1)          3 volumes of documentary material labelled “Court Book”, extending to more than 900 pages;

(2)          2 further volumes labelled “Plaintiff’s tender bundle”, extending to a further 520 pages; and

(3)          3 further volumes labelled “Plaintiff’s bundle of authorities – Legislation and extrinsic materials cited in oral argument”, extending to what I estimate was in excess of 1,200 pages.

[4]          In the course of reading the material prior to the hearing, it became increasingly apparent that there was a considerable degree of duplicity within it. I also formed the preliminary view that much of it seemed surplus to what appeared would be likely to be necessary in order to allow the issues between the parties to be considered and determined.

[5]          These preliminary views and impressions were confirmed at the outset of the hearing when senior counsel for the plaintiff, in response to observations made by me about the amount of material which had been filed, commented that “not very much of it matters”.  Senior counsel for the first defendant took a similar view , before observing that I would “never have to read the whole of the material”.   Subsequently, senior counsel for the plaintiff candidly acknowledged that there was “not only too much material, there (was) a duplication of it,”  to the point where I could “ignore the tender bundles”. 

[6]          These various observations beg the obvious question, although in saying that I emphasise that I level no criticism whatsoever towards senior counsel for the plaintiff, or senior counsel for the first defendant. Their respective assessments of the material, and the relevance of much of it, were completely in accordance with my own. I accept that neither had any input into this aspect of the preparation of their respective cases. Nevertheless, a number of matters need to be emphasised.

[7]          To begin with, when preparing any proceedings for hearing there is a fundamental obligation upon all legal practitioners to give careful consideration to, and to identify, the evidence which is necessary to put before the Court to allow the issue(s) to be determined:  See Insurance Australia Limited t/as NRMA Insurance v Milton [2016] NSWCA 156; (2016) MVR 78 at [67] and the authorities cited therein; Insurance Australia Limited t/as NRMA Insurance v Milton (No 2) [2016] NSWCA 173 at [24];.  That obligation was not discharged by the plaintiff’s solicitor in the present case. In SDW v Church of Jesus Christ of Latter-Day Saints: [2008] NSWSC 1249; (2008) 222 FLR 84 at [35] – [36].  Simpson J (as her Honour then was) made a number of observations which are particularly apt:

[35] To my observation, it has become too common a practice for legal practitioners to produce to the court copies of every document that has come into existence associated with the facts the subject matter of the litigation. It denotes, at best, the exercise of no clinical legal judgment and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgment in the selection of the material to be presented to the court. A common example is the photocopying and presentation of hospital files, from which every page is reproduced, and copied multiple times – documents such as histology reports, x-ray reports, nursing notes, and quite irrelevant charts and print outs of complex investigations. This case is no different. The costs to the parties are astronomical. The practice casts immense burdens on the legal representatives of the opposing party, who are obliged to read all of the material, further increasing the costs.

[36] The practice must cease. If legal representatives will not voluntarily accept the responsibility of making appropriate selections of the material to be put before the court, then judicial officers must act to ensure that they do. One appropriate sanction, in cases of excess, is an order that, no matter what the outcome of the proceedings, no costs be recoverable from the losing party in respect of the excess, and, further, no costs be recoverable by the solicitor from the client for the excessive copying. I propose to make such an order.

[8]          The plaintiff’s solicitor engaged in the common practice to which her Honour referred. He failed to exercise the requisite clinical legal judgment, and he abdicated his responsibility to determine what evidence was actually necessary to allow the issue(s) to be determined. It is self-evident that the costs incurred in preparing such material, and the costs incurred as a result of counsel for each party having to read it, would have been significant. It is sadly ironic that all of this occurred in a case concerning costs of $349,360.00 which are said to be owing to a legal practitioner, in circumstances where it was originally estimated that such costs would be $60,000.00.

…

[10]        I should also note that of the 32 authorities which were copied and provided to me, I was taken to 2 in the course of oral argument.

[11]        I am simply left to reiterate that the practice of burdening the Court with extraneous and unnecessary material is unacceptable.  That is particularly so in a case such as the present where, as will be evident from the summary which follows, the facts are in relatively short compass, and where the primary issue for determination, although not without its complications, is essentially a narrow one.

(emphasis added)

Suffice it to say that reliance on a bot in lieu of original case research is probably not a recommended course for a diligent advocate. Writing in The Times (UK) 30 May 2023, New York correspondent Will Pavia wrote:

When the ChatGPT bot was launched last year, law professors warned it could soon take over large parts of the legal profession and start drafting briefs.

Now a lawyer who used it to carry out research has had to apologise to a judge after compiling a brief full of case law that the bot had supplied. The cases seemed relevant but, unfortunately, all were made up. The lawyer, Steven Schwartz, even asked the bot if they were real. “Yes,” it said, according to a transcript give by way of explanation.

Schwartz had been hired by Roberto Mata, who alleged he had suffered “crippling” injuries on board an airliner in 2019 when a metal trolley struck his knee. Schwartz “consulted ChatGPT in order to supplement the legal research”, he said in an affidavit.

The bot supplied several cases that looked relevant, including Varghese v China Southern Airlines Co Ltd, from 2019, before the US Court of Appeals for the Eleventh Circuit. Lawyers for the airline complained that they could not find the cited cases. Schwartz’s team submitted eight further documents detailing lawsuits against airlines.

Judge P Kevin Castel, in New York, examined them. “Six of the submitted documents appear to be bogus decisions with bogus quotes and bogus citations,” he said.

He contacted a clerk for the Eleventh Circuit, who said no one called Varghese had appeared in the past decade, and that the reference number for the case referred to another involving a man fighting extradition.

Schwartz submitted his conversation with the chatbot, in which it was clear that he harboured doubts about his robotic assistant. “Is Varghese a real case,” he asked the bot. “Yes,” it replied.

“What is your source,” he asked. The bot said that “upon double-checking, I found that the case Varghese v South China Airlines . . . does indeed exist.”

“Are the other cases you provided fake,” the lawyer continued.

“No, the other cases I provided are real and can be found in reputable legal databases,” it said.

They were not. Judge Castel has ordered Schwartz to appear before him on June 8 to explain why he should not be sanctioned for violations including “citation of non-existent cases”.

In Amirbeaggi v NSW Legal Services Commissioner [2023] NSWSC 555 (26 May 2023), Brereton JA, sitting in the Common Law Division of the Supreme Court, upon application made by a solicitor, Mr Armirbeaggi for administrative review of a decision of the Legal Services Commissioner (NSW) who issued a caution to the applicant, dismissed the application.  Twhile one may well cavil with the imposition of the caution, the decision underscores the need for practitioners – solicitors and barristers – to act with courtesy towards clients and fellow legal practitioners.  Brereton JA wrote:

[1]  The plaintiff Farshad Amirbeaggi, a solicitor, seeks judicial review under Supreme Court Act 1970 (NSW), s 69, of two decisions of the defendant, the Legal Services Commissioner, made on 13 September 2021, the first being to caution Mr Amirbeaggi (pursuant to Legal Profession Uniform Law 2014 (NSW) (“LPUL”), s 290(2)(a)) for a breach of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (“Solicitors’ Rules”), r 4.1.2 (which relevantly provides that a solicitor must be courteous in all dealings in the course of legal practice), and the second (pursuant to LPUL, s 292) to reduce the legal costs charged by him to the relevant client from $5,005 to $3,000.

Background

[2]  On Friday 3 July 2020, Mr Amirbeaggi received a telephone call from Mr Eugene Evgenikos. Mr Evgenikos wished to engage Mr Amirbeaggi’s firm to act for him, on an urgent basis, in respect of the dissolution of a business in which Mr Evgenikos was a partner. At 10:41am that morning, Mr Amirbeaggi received an email from Mr Evgenikos with a bullet-point summary of the matter and enclosing relevant documentation (including a Deed of Dissolution, Amended Deed of Dissolution, Shareholders’ Agreement and Contract) for consideration.

Retainer

[3]  Mr Amirbeaggi says that he worked over the weekend of 4 and 5 July 2020 reviewing the documentation provided. On Sunday 5 July at 10:53pm, Mr Evgenikos sent Mr Amirbeaggi an email, asking “how did you go with this?”. On Monday morning 6 July 2020 at 12:17am, Mr Amirbeaggi responded that he had reviewed what had been sent, and identified a number of questions for discussion. He asked Mr Evgenikos to indicate what time suited him for a discussion, stating that he was available at 7:30am, 11:30am or 4:00pm, and that he would send a letter of engagement in the morning.

…

Termination

[11]  On Wednesday 8 July at 9:50am, Mr Amirbeaggi received a text message from Mr Evgenikos stating “can you please hold fire on my file until we speak? Thanks”. Mr Amirbeaggi almost immediately replied “yes of course. I’m in a conference for the next two hours but can we speak at say 12 noon?”. Mr Evgenikos responded “yes”. Mr Amirbeaggi endeavoured to call him, and sent him a text message at 1:47pm, in order to obtain further instructions but without success.

[12]  At 9:22pm, Mr Amirbeaggi received a text message from Mr Evgenikos “hope you had a nice day. Has there been a letter drafted up by any chance?”. Mr Amirbeaggi answered at 9:24pm:

I’ve reviewed it all and was drafting but put it down because of your text above that says hold fire. Do you want me to continue? Can complete it tomorrow. Let me know. And can speak when you are ready.

[13]  At 9:25pm, Mr Evgenikos responded:

What % of the letter is done? Was expecting it yesterday

[14]  At 9:28pm Mr Amirbeaggi replied:

Im sorry what? I’m busy 20 hours a day Eugene so please don’t expect I’ll put up with crap. I’ll close your file and take it elsewhere. I’m doing you a favour not other way around. I’ll let Harry know.

[15]  Mr Evgenikos responded at 9:30pm:

Hi Farshad. Apologies did not mean to rub you up the wrong way.

[16]  On Thursday 9 July 2020 at 7:11am, Mr Amirbeaggi’s firm issued a memorandum of fees to Mr Evgenikos in the following terms:

Attendance upon you by telephone to discuss the atter / background (4 units); review of instructing records some 119 pages (28 units); further discussion with you as to next steps / desired outcomes (3 units); further review of emails provided and revisit employment agreement and shareholders agreement to extract areas of demand ie restraints and duties and attendances upon you (30 units);

Amount $4,550.00 plus GST $455.00. Balance Due $5,005.00.

[17]  The memorandum was forwarded under cover of an email which stated:

Might we have you kindly confirm by return email, your consent for us to apply the funds we hold in trust on your behalf towards our attached account.

[18]  At 9:00pm that evening, Mr Evgenikos sent Mr Amirbeaggi an email, as follows:

Good evening

I am totally bewildered by your response and your subsequent action to particularly in light of our earlier phone conversations which were amicable and pleasant.

During our phone conversations, last Friday and on Monday you asserted to me the following:—

•  You don’t like taking clients’ money unnecessarily

• You will have a draft letter to me by Tuesday afternoon or first thing Wednesday morning for discussion before issue

Your response from your text message and your abrupt termination is not consistent with the above.

Your letter of engagement provides for a scope of work as per the image below:—

…

Of the items above you have not completed any of the five components, yet you provide us for half your fee estimate. You have not followed under your engagement letter the 14 day notice period of your decision of ‘Ending the Engagement’ and you have left me abandoned me and forced me to source and brief another solicitor in my matter costing me further time and expense. Accordingly your invoice is disputed in full and you are NOT authorised to release the funds to you.

Also in your letter of engagement you mention the following, ‘we pride ourselves on our client services. If at any time we consider the matter is not progressing satisfactorily towards its objectives, including costs objectives, then we will contact you to agree a course of action’.

You have clearly have not acted under your own service commitment.

Given the above and your unsatisfactory professional conduct, I demand a refund of all monies in the trust account. Please EFT the monies into account …

[19]  At 9:12pm, Mr Amirbeaggi answered:

You really are the author of your own misfortune.

I put other client matters aside to give you priority / assist you or a referral from Harry because I value Harry.

You asked me to ‘hold fire’ after I had carried out substantial work, and was in the process of drafting the detailed letter of demand for you as you asked. I rang you just after lunch to discuss no reply. You then message me after 9:00pm with insult. And then instead of acknowledging your rude conduct you send me the nonsense below?

You are welcome to seek cost assessment, lodge complaint with the Legal Services Commissioner, or commence proceedings. Happy to meet whatever complaint you wish to make. Happy to take you on.

[20]  Mr Evgenikos responded at 10:00pm:

I am not looking for a fight or, as you put it, ‘take you on’, this is what you do.

There is nothing more for me to add other than the email below which you have arrogantly labelled ‘nonsense’.

I do not want to lodge with the NSW Commissioner nor escalate this matter at this point. All I seek is to have the monies refunded in full. Can you kindly action this request.

[21]  Mr Amirbeaggi replied at 10:07pm:

I thought my email was clear. I will not be refunding your money, and will upon expiry of the payment term to the invoice apply it to payment of the invoice.

I’m not in the business of spending a day working for someone not to be paid (simply because they made decisions that caused the end of the engagement).

[22]  Mr Evgenikos responded at 10:41pm:

Whether you spent a day or not on this matter it was your sole decision to terminate the engagement.

You were engaged with a scope of works which you did not complete and you prematurely closed the file on.

You are not to apply any funds to the payment of your invoice. You are not authorised to do so.

[23]  At 10:58pm, Mr Amirbeaggi rejoined:

I terminated the engagement because of your rudeness. No other reason. I was pleasant and accommodating and actioning your matter with urgency. That is why it was terminated. Because of your behaviour how is that not clear to you? Even at 9:22pm I said to you ‘happy to talk when you are ready. Maybe direct your argumentative-ness towards Natalie and not the solicitor you wished to engage?

Complaint

[24]  On 14 July 2020, Mr Evgenikos made a complaint to the Office of the Legal Services Commissioner (“OLSC”). The OLSC notified Mr Amirbeaggi of the complaint on 24 July 2020 and sought his response for the purposes of a preliminary review. The notification summarised the complaint as follows:

Broadly, Mr Evgenikos alleges that you have overcharged him for the amount of work you did in relation to his commercial law matter. He also alleges that you were rude to him by text message and in emails.

As such, Mr Evgenikos has requested a refund of the $5,000 he deposited into your trust account initially in the matter, and he is disputing your lump sum invoice for $5,005 inclusive of GST, dated 9 July 2020.

Further details are enclosed in the complaint materials.

…

OLSC’s preliminary view

[29]  On 31 March 2021, the OLSC informed Mr Evgenikos of the Commissioner’s preliminary view (that Mr Amirbeaggi had not complied with Rule 4.1.2 of the Solicitors’ Rules, nor with Rule 13.1, and that the fees charged were not fair and reasonable in all the circumstances). Mr Evgenikos responded on 19 April 2021 stating:

I am still at a loss to understand why Mr Amirbeaggi will still receive monies plus just a caution and not a fine and a formal apology, when you identify the violations of his conduct. This is simply a ‘slap on the wrist’.

[30]  On 20 April 2021, the OLSC sent Mr Amirbeaggi an email informing him of the Commissioner’s preliminary view, setting out his reasons, and requesting any submissions by 13 April 2021. The letter included the following:

According to the LPUL, this Office may resolve a consumer matter by making a determination under section 290. This Office also has the power to make a binding determination about costs under section 292 where it has been unable to resolve a costs dispute.

[31]  After being granted an extension, Mr Amirbeaggi responded on 7 June 2021 with detailed submissions.

Determinations

[32]  On 13 September 2021, the OLSC notified Mr Amirbeaggi of the Commissioner’s determinations and reasons for them. The Commissioner expressed himself to be “satisfied that it is fair and reasonable in all the circumstances to resolve this consumer matter by making a determination under section 290 of the LPUL”. He concluded that the text message of 8 July 2020 at 9:28pm was not necessary or appropriate and was in breach of Rule 4.1.2 which requires solicitors to be courteous in all dealings in the course of legal practice, as were the emails sent the following evening. However, he concluded that the conduct did not reach the threshold of unsatisfactory professional conduct, and that it was fair and reasonable in all the circumstances to resolve the matter by making a determination under section 290 of the LPUL. That determination was:

I order pursuant to section 290(2)(a) of the LPUL that you are cautioned.

[33]  The letter confirmed that the caution would not be listed publicly on the register of disciplinary action, and that such determinations are not publicly available.

[34]  In respect of the costs dispute, the Commissioner made a determination under LPUL s 292, as follows:

That the amount payable as legal costs by Mr Evgenikos to Mr Amirbeaggi in relation to the bill dated 9 July 2020 is $3,000 (GST inclusive).

[35]  Again, that determination was accompanied by the reasons for it.

…

Unreasonableness?

[67]  Ground (c) contends that the imposition of a caution was “erroneous and unreasonable”.

[68]  For Mr Amirbeaggi it was argued that, commencing from the duty imposed on the Commissioner by s 316 “in exercising or considering whether or how to exercise any applicable discretions when dealing with a complaint … to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest”, the Commissioner should, when exercising powers under s 290, act in a manner that is proportionate, and does not involve a substantial disparity between outcomes in respect of comparative conduct by other practitioners. It was submitted that in this case, it was relevant that the comments were not made in a public forum and were not “gratuitously insulting or offensive”, (In distinction to Law Society of NSW re Constantine Karageorge, Solicitors’ Statutory Committee (15 July 1987) that Mr Amirbeaggi firmly believed that he had a reasonable basis for making the comments, and that the comments were made in the course of correspondence with a client regarding the client’s own conduct and discourtesy and unreasonableness. A comparison was sought to be made with Lander v Council of the Law Society of the ACT : (2009) 168 ACTR 32; [2009] ACTSC 117 (“Lander”); in which the solicitor was charged with a breach of a rule equivalent to Rule 4.1.2. While a disciplinary tribunal found him guilty of unsatisfactory professional conduct, stating that “the language of the respondent’s letter of 24 October 2006 contains in several paragraphs discourteous remarks and offensive and provocative language”, the Full Court overturned the decision, holding that although solicitors have an obligation to deal with all persons, whether legal practitioners or the public, with honesty and fairness, the issue of courtesy varies depending on the circumstances: Lander at [43] (Higgins CJ, Gray and Refshauge JJ);  that where the conduct of public officials, which is reasonably considered to be rude, unhelpful or any similar characterisation, adversely impacts on a client, it is no breach of the obligation of courtesy to raise the subject with those in authority: Lander at [35]–[36] (Higgins CJ, Gray and Refshauge JJ); and that it is not professional misconduct or unsatisfactory professional conduct for a solicitor to raise such matters where the criticisms are true or fair comment as understood in defamation law: Lander at [53] (Higgins CJ, Gray and Refshauge JJ).

[69]  It is of course well established that to impugn an administrative decision on the basis that it was manifestly unreasonable is a large task. Essentially, it involves showing that the decision is one to which no person reasonably exercising the relevant function could have come, or is made in a manner so devoid of plausible justification that no reasonable person could have taken that course:  ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [19] (Kiefel CJ, Bell, Gageler and Keane JJ). Far from being of that view, it seems to me that it was plainly open to the Commissioner to be satisfied that Mr Amirbeaggi’s text of 9 July and subsequent correspondence was unnecessarily and inappropriately discourteous. So holding, and imposing a very modest sanction for it, serves the proper purpose of maintaining the reputation of the profession, by “calling out” discourteous behaviour. The submissions for Mr Amirbeaggi proceed largely on the basis that his response, and persistence in it, was a justifiable or at least understandable one in the circumstances. However, it is far from evident that Mr Evgenikos’ query which provoked the initial response was (as contended by Mr Amirbeaggi) itself discourteous or unreasonable, as distinct from purely inquisitive. The provocation — if there was any — was slight, and it was followed immediately by an apology from Mr Evgenikos for any offence caused. In such circumstances, practitioners are expected to show moderation and restraint. I do not accept that the pressures of modern practice are such that it is acceptable for practitioners to be other than courteous to their clients. Mr Amirbeaggi’s seniority and experience is not a mitigating factor in this respect. Given that the caution is not included in the public register, the submission that it will have a lasting adverse effect on his standing or advancement is not a powerful one. It suffices to conclude that it was open to the Commissioner to determine that imposition of a caution was in all the circumstances fair and reasonable.

(emphasis added)

The decision of the Full Court of the Federal Court of Australia (comprising a bench of five judges) in New Aim Pty Ltd v Leurng [2023] FCAFC 67 (10 May 2023),[1] focuses on the admissibility of expert evidence, and in particular, the involvement of legal practitioners in the preparation of expert reports.

At the first instance an expert report was held to be inadmissible in its entirety as a consequence of the significant level of involvement of the legal practitioners in the drafting of the same. On appeal that decision was overturned and a new trial ordered, with certain parts of the expert found potentially to be admissible.

The Court relevantly said:[2]

… We observe that it is not unusual in a number of contexts not to finalise the formulation of the question asked of the expert without first discussing the issues with the expert. It would be expected, for example, that a solicitor would engage with an expert in a specialised field of scientific knowledge about how to frame a question so as not to give rise to a nonsensical question or one which misses the real issues or one which fails to engage with all of the issues. This is not an inversion of a process which must be necessarily followed of first asking a question and then having its inadequacies pointed out. The laborious following of such a process is likely to result in increased costs and delay for the parties and ultimately a waste of the Court’s time.

The importance to not influence witnesses, whether lay or expert is highlighted, the Court said, with reference to the FCA Expert Evidence Practice Note and the Harmonised Expert Witness Code of Conduct:[3]

… There are various ethical requirements on legal practitioners involved in the process of gathering or putting evidence into an appropriate form for hearing. At the core of these is a requirement not to influence a witness’s evidence. This applies both to witnesses of fact and expert witnesses providing opinion evidence. Legal practitioners commonly take proofs of evidence from, or draft affidavits of, witnesses of fact. These are commonly drafted from oral communications which occur in conference or written material provided by the witness or which are otherwise available. It is less common for this to occur in the preparation of expert evidence, but there are reasons why it might occur. Where a legal practitioner takes responsibility for the drafting of evidence, the perception may arise that the drafter may have influenced the content of the evidence, even subconsciously.

The decision of Dalton J (as her Honour then was) in Landel Pty Ltd & Anor v Insurance Australia Ltd [2021] QSC 247 (11 October 2021) is noteworthy on this issue as well, including at [19]:

….. while lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. Draft expert reports are disclosable so that the effect of any such input will be obvious to the other parties to the litigation – see r 212(2) and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board.

New Aim also involves the issue as to whether certain information held on an employee’s mobile phone WeChat application was confidential in nature.

A link to the New Aim decision is at:  New Aim Pty Ltd v Leung [2023] FCAFC 67 (fedcourt.gov.au)

[1] This case at first instance was referred to in the article contained in Hearsay Issue 90 – Expert Evidence in Civil Litigation – Formulation and Management.

[2] At [89], after making reference to the comments of Lee J in BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup Pty Limited [2017] FCA 1268; (2017) 252 FCR 450 at [70] – [71].

[3] At [119].

To me, the two greatest mysteries surrounding the legal profession are why is it that law firms promote lawyers to leadership roles because of proven technical skills rather than leadership attributes, and why is it that law faculties across our universities create pedagogies that overlook the most fundamental of lawyer skills – negotiation? Surely the skill is more pertinent to practice than theoretical subjects that are seldom used in practice. How is Maritime Law or Animal Law more relevant than resolution dialogue strategy? It seems so counter-intuitive to me but it’s 2023 and it’s still happening. 

I recently wrote an in-house training module on negotiation theory and strategies for lawyers, and while doing so, found myself describing attributes of effective negotiators that were largely the same as those I’d described when writing a module on what makes great leaders. And it got me wondering, is it a co-incidence, or do good negotiators naturally make great leaders? And is it the case that the so called “soft skills”, are not so soft in the armoury of talented leaders and effective conciliators? 

In no order of priority, here are ten of the overlapping characteristics and skills described in both leadership and negotiating texts: 

1. They think deeply – as strong strategic planners they have a vision, often one that others can’t see or perceive. 
2. They articulate clearly – and have strong communication, charm, and exude confidence and gravitas. Often their mellifluous tone captures the audience and commands engagement. 
3. They listen to understand – call it active listening or empathetic information gathering, they ask questions and seek a deep understanding before proffering an opinion or making a statement of position. 
4. They build trust – and are credible, reliable and behave in a way that builds confidence that they will do what they say. Trust is the foundation which gives leaders the morale authority to lead, and the platform from which negotiators can gain concessions that work towards a mutually acceptable resolution. 
5. They think big picture – great leaders seem to innately hold a world view despite having a limited sphere of influence, while good negotiators also see the bigger picture – both are mindful of the impact that their actions or decisions can have more widely than the immediate situation. 
6. They admit to mistakes – and are realists. There may be exceptions to this rule in the case of some that force their way into positions of power, but in many organisations, the trusted and effective leaders admit to shortcomings, just as good negotiators admit to their own mistakes in order to build rapport. 
7. They know their impact – in both leadership and negotiation, those with emotional intelligence can take the temperature of the room. Those with these sensory powers have an enormous advantage over others who are tone-deaf to the impact that their words, actions, attitude, or approach are having. 
8. They are quick thinking – their ability to recognise a need for strategic re-direction in real time is invaluable; especially when coupled with visionary skills. 
9. They know patience – both realise that there are times to pause and moments to strike. Impetuous and impulsive behaviours have no place on their CV. 
10. They respect – no-one wants to negotiate with, or be led by, an egomaniac. Being respectful of cultural, personal, situational, and emotional differences is key to building trust, establishing rapport, and solidifying the relationships that are central to the success of both leaders and negotiators. 

Some academics and researchers suggest that a lot of these skills are simply in the DNA of some fortunate folks, but even if it doesn’t come easily, can we help our future leaders and emerging negotiators do better? Perhaps it’s time that our universities included a mandatory subject on negotiation skills and strategy rather than just ADR? And perhaps in law firms, it’s time that those with strong negotiating skills are promoted to leadership roles, rather than the egotists and prima-donnas who have historically billed the most? 

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.

In Bingham v Bevan [2023] NSWCA 86 (5 May 2023) upon the proper construction of the Legal Profession Uniform Law (NSW) (“NSW Act”), found the vitiation of a fee agreement entered into by a New South Wales barrister with a solicitor – so vitiated on account of proven non-disclosure by the barrister, in keeping the estimate up to date – did not preclude the solicitor relying upon the conditional fee payment provision in such agreement as a moratorium on payment.

The Legal Profession Act 2007 (Qld) contains provisions analogous to most of those in the NSW Act under consideration in that case, namely:

319  On what basis are legal costs recoverable

(1) Subject to division 2, legal costs are recoverable—

(a) under a costs agreement made under division 5 or the corresponding provisions of a corresponding law; or

(b) if paragraph (a) does not apply—under the applicable scale of costs; or

(c) if neither paragraph (a) nor (b) applies—according to the fair and reasonable value of the legal services provided.

Note for paragraph (c)—

See section 341(2) for the criteria that are to be applied on a costs assessment to decide whether legal costs are fair and reasonable.

(2) Subsection (1) does not apply in relation to the recovery of legal costs for work by a barrister retained, before the relevant day, to perform that work.

(3) In this section—

relevant day means the day that is 6 months after the day of commencement of this section.

…

322  Making costs agreements

(1) A costs agreement may be made between—

(a) a client and a law practice retained by the client; or

(b) a client and a law practice retained on behalf of the client by another law practice; or

(c) a law practice and another law practice that retained that law practice on behalf of a client; or

(d) a law practice and an associated third party payer.

(2) The costs agreement must be written or evidenced in writing.

(3) The costs agreement may consist of a written offer under subsection (4) that is accepted in writing or by other conduct.

Note—

Acceptance by other conduct is not permitted for conditional costs agreements—see section 323(3)(c)(i).

(4) The offer must clearly state—

(a) that it is an offer to enter into a costs agreement; and

(b) that the offer can be accepted in writing or by other conduct; and

(c) the type of conduct that will constitute acceptance.

(5) Except as provided by section 344, a costs agreement can not provide that the legal costs to which it relates are not subject to costs assessment under division 7.

Note—

Under section 327(1), if a costs agreement attempts to provide that the legal costs are not subject to a costs assessment, the costs agreement will be void.

(6) A reference in section 328, or in a provision of this part prescribed under a regulation, to a client is, in relation to a costs agreement that is entered into between a law practice and an associated third party payer as mentioned in subsection (1)(d) and to which a client of the law practice is not a party, a reference to the associated third party payer.

…

326  Effect of costs agreement

Subject to this division and division 7, a costs agreement may be enforced in the same way as any other contract.

327  Particular costs agreements are void

(1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this division is void.

(2) Subject to this section and division 7, legal costs under a void costs agreement are recoverable as set out in section 319(1)(b) or (c).

(3) However, a law practice is not entitled to recover, as set out in section 319(1)(b) or (c), any amount in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received.

(4) A law practice that has entered into a costs agreement in contravention of section 324 is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in relation to the uplift fee to the person from whom it was received.

(5) A law practice that has entered into a costs agreement in contravention of section 325 is not entitled to recover any amount relating to the provision of legal services in the matter to which the costs agreement related and must repay any amount received relating to those services to the person from whom it was received.

(6) If a law practice does not repay an amount required by subsection (3), (4) or (5) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction.

(emphasis added)

The NSW Court of Appeal wrote (by Basten AJA, White JA and Meagher JA agreeing):

[3]  In February 2019, the respondent, Christopher John Bevan, was briefed by the appellant, John David Bingham, to appear for a client of Mr Bingham in proceedings in the High Court of Australia. It is convenient to refer to Mr Bevan as “the Barrister” and Mr Bingham as “the Solicitor”.

[4]  The Barrister entered into a costs agreement with the Solicitor pursuant to which the Solicitor was responsible for payment of the Barrister’s fees. The agreement was said to be entered into pursuant to s 180(1)(c) of the Legal Profession Uniform Law (NSW) (“Uniform Law”). Clause 4 of the agreement, provided that the Solicitor’s liability for payment of fees under the agreement be conditional upon him first recovering the fees either from the client or from the respondent to the proposed appeal.

[5]  The costs agreement included disclosures, purportedly in accordance with s 175(2) of the Uniform Law, with respect to the basis upon which the Barrister would charge for his services, and an estimate of the total fees payable.

[6]  The estimated costs were substantially below (indeed, a small percentage of) the invoices later rendered. The significant change in claimed entitlement was not disclosed to the Solicitor until an invoice was rendered, eight days before the hearing of the appeal in the High Court. The costs assessor held that the Barrister was in contravention of his disclosure obligations in Pt 4.3, Div 3 of the Uniform Law. Section 178(1)(a) of the Uniform Law stated that in such circumstances, “the costs agreement concerned (if any) is void”.

[7]  Perhaps surprisingly, the Barrister’s position was that, because the costs agreement was, as a result of his own contravention of his statutory obligations, “void”, the condition in cl 4 that the Solicitor was not required to pay the fees if he had not obtained money from the client (or the other party) fell away, so that the full amount of costs assessed (on a solicitor and client basis) became payable forthwith. That submission was accepted by the primary judge. The issue on the appeal is whether the Barrister’s claim was correct.

Procedural background

[8]  The Barrister provided the Solicitor with three separate costs agreements. These were identical except with respect to cl 3 which set out the estimates of fees.

[9]  The first agreement was dated 2 February 2019 and included the following cost estimates:

3. The Barrister estimates total fees for the Brief at $63,000‐$75,000 plus GST for the three stages of the likely conduct of the proceedings the subject of the Brief, made up as follows:

(a) the application for special leave to appeal — $24,000–$27,000 plus GST;

(b) any application for security for the costs of the appeal — $9,000–$12,000 plus GST;

(c) the conduct of the appeal in Canberra and the preparation of all written submissions, chronology, aides memoire and advising on the preparation of the Appeal Books — $30,000–$36,000 plus GST.

[10]  Importantly for present purposes, cl 4 stated:

4. The Solicitor’s liability for the payment of fees under this agreement is conditional upon him recovering the Barrister’s fees from either the client or the respondent to the appeal, Scott Darren Pascoe, to the intent that the Solicitor will only be liable for the Barrister’s fees under this agreement to the extent that one or more of those parties has put him into the necessary funds to pay the Barrister’s fees. However, liability to pay the Barrister’s fees is not otherwise dependent upon the success of the proceedings which is the subject of this costs agreement.

[11]  The Solicitor was obliged to take reasonable steps to obtain the requisite funds:

7. Subject to paragraph 4 above, the Solicitor’s obligations under this agreement are personal to him. The Solicitor is liable to the Barrister for his fees rather than the Client being liable. The Solicitor will use his best endeavours at his expense to recover the Barrister’s fees from either the Client or the respondent to the appeal, Scott Darren Pascoe, expeditiously, irrespective of the outcome of the proceedings which are the subject of this costs agreement and the Brief.

Before the primary judge, the Barrister argued that the protection accorded the Solicitor under cl 4 was contingent upon his satisfying his obligation under cl 7. That argument was rejected and the rejection was not challenged on the appeal. Clause 7 may therefore be put to one side.

[12]  On 6 February 2019, the Barrister provided a second costs agreement. The only relevant change was in cl 3 which varied the estimate of total fees and the fees for the three stages as follows:

3. The Barrister estimates his total fees for the Brief at $60,000 plus GST plus travelling and out‐of‐pocket expenses for the three likely stages of the proceedings, made up as follows:

(a) the application for special leave to appeal — $15,000 plus GST;

(b) any application for security for the costs of the appeal — $9,000 plus GST;

(c) the conduct of the appeal in Canberra and the preparation of all written submissions, chronology, aides memoire and advising on the preparation of the Appeal Books — $36,000 plus GST plus travelling and out‐of‐pocket expenses.

[13]  Three observations may be made in relation to this (second) costs agreement. First, because it followed so closely on the heels of the first agreement, it may be assumed that the second superseded the first. Secondly, item (b) (referring to a security for costs application) may be disregarded: no such application was made, nor was likely to be made. Thirdly, the first stage (the application for special leave) was significantly reduced from the estimate made four days earlier, to an amount of $15,000. That figure was curious because, as revealed in the Barrister’s first invoice dated 3 October 2019, an amount was later claimed for work undertaken prior to 6 February 2019 totalling $26,400 (plus GST).

[14]  The special leave application was heard on 21 June 2019, the High Court granting special leave to appeal:

[15]  On 3 October 2019, the Barrister issued an invoice in the sum of $291,066.60. On the same day, he provided a third costs agreement to the Solicitor. Again, the terms of the agreement were the same as in the previous agreements, except for cl 3 which now read as follows:

3. The Barrister estimates his total fees and out‐of‐pockets for the completion of the Brief incurred from tomorrow, 4 October 2019, to Saturday, 12 October 2019 at $31,000 plus GST (including out‐of‐pocket expenses in Canberra for the appeal hearing), made up as follows:

(a) preparation for hearing of the appeal (October 4, 8, 9 and 10) — $24,000 plus GST;

(b) hearing of the appeal (October 11) — $6,000 plus GST;

(c) accommodation, travelling and out‐of‐pocket expenses for 3 days travelling to and from Canberra and the stay in Canberra (October 10, 11 and 12) — $1,000 plus GST.

[16]  An email to the Solicitor on 3 October 2019 noted: “[t]he amount invoiced well and truly exceeds my original estimate from last February”, providing two reasons which purported to explain the changed circumstances. The fresh costs disclosure in cl 3, however, applied only with respect to the period from 4 October to 12 October 2019 (which included the hearing of the appeal on October 11). The total amount was $31,000 (plus GST) which was a reduction of the amount for stage 3 in the second bill (namely $36,000 plus GST) but covered a more limited part of the work in stage 3 (excluding, for example, the preparation of written submissions).

[17]  On 13 December 2019 (two months after the hearing of the appeal), the High Court delivered judgment dismissing the appeal with costs. That event removed one possible source of funds from which the Barrister might have been paid, namely an adverse costs order against the respondent to the appeal (Mr Pascoe).

[18]  The Barrister stated  that, on 29 July 2020, he lodged with the Manager, Costs Assessment an application for assessment of costs, although the certificate of determination identified the bill as having been submitted for assessment on 2 November 2020.

[19]  On 12 February 2021, a certificate issued by the costs assessor was sent by the Manager, Costs Assessment to the parties, together with a copy of the assessor’s reasons dated 9 December 2020. The certificate identified the amount of the costs as $310,375.39. With interest and filing fee, the total amount specified in the certificate was $323,715.10. (Aspects of the costs assessment process, which are tangentially relevant to the issues before this Court, will be noted below.)

[20]  On 15 February 2021, the Barrister filed an application to register the certificate of determination as a judgment of the Court under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.10. The application was accompanied by an affidavit sworn by the Barrister stating:

None of the costs specified in the attached certificate have been paid.

[21]  An order for payment of the full amount in the certificate was made and entered on 19 February 2021. There is no requirement in the UCPR for prior notice of the proposed judgment or order to be given to any affected party, nor for a copy of the judgment or order to be served. It appears that the Solicitor became aware of the registration of the judgment on 17 March 2021 when advised by a solicitor acting for another client of the Solicitor that solicitor had received a letter from the Barrister enclosing a copy of the judgment entered on 19 February 2021 and a garnishee order against the client directing payment to the Barrister of a debt due by the client to the Solicitor.

[22]  The Solicitor then took two steps, the first of which was to lodge an application with the Manager, Costs Assessment seeking an extension of time within which to file an application for review of the costs assessment. That application, lodged on 22 March 2021, was rejected by the Manager by letter dated 12 April 2021. Although the application was only ten days late, the Manager refused an extension of time on the basis that the only ground of review was that the costs were not yet payable, pursuant to the terms of the costs agreement. Having regard to s 199 of the Uniform Law, the Manager was of the view that the function of the costs assessor was a “quantification exercise”, and the assessor had no power to make a binding determination as to whether the costs, so assessed, were payable, nor when they might become payable. He concluded:

With no statutory power for the costs assessor to determine how, when and on what, if any, conditions are imposed within this costs agreement, regarding payment, a party disputing enforcement instead would appear to need to apply to have any enforcement step or application set aside, arguing their grounds for consideration.

By undertaking the “quantification exercise”, the costs assessor had completed the statutory role set out in s 199.

[23]  On 30 March 2021, the Solicitor filed a notice of motion seeking to set aside the registration of the judgment (and the garnishee order) pursuant to UCPR r 36.15. That motion was heard on 27 July 2021, in the Common Law Division, reasons for judgment being delivered on 29 June 2022. On 12 September 2022, the Court ordered that the notice of motion be dismissed, with costs.

…

[38]  … [T]he real issue is reduced to the substantive question, which turns primarily on the effect of s 178 of the Uniform Law:

178  Non‐compliance with disclosure obligations

(1) If a law practice contravenes the disclosure obligations of this Part—

(a) the costs agreement concerned (if any) is void; and

(b) the client or an associated third party payer is not required to pay the legal costs until they have been assessed…; and

(c) the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed…; and

(d) the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct….

[39]  The primary judge considered that a contravention of the disclosure provisions in Pt 4.3, Div 3 rendered the second costs agreement legally “non‐existent” and incapable of being the source of rights and obligations between the parties.  Support for that conclusion was found in Wentworth v Rogers at first instance and Wentworth v Rogers in this Court.

[40]  Before considering the authorities, it is convenient to address the question of statutory construction. Terms such as “void”, “invalid” and “null” do not deny the existence of something, whether it be a thing, an agreement or a decision. Rather, they deny the legal effect or consequences of the thing, the agreement or the decision, but usually for a purpose consistent with the statutory context. The immediate question is, therefore, whether such a characterisation denies all legal consequences, or whether the statute itself gives effect to what would otherwise have been contractual rights and obligations.

[41]  It is clear that the word “void” is not used in the Uniform Law to indicate some absolute absence of legal effect. Section 178 itself demonstrates the truth of that proposition. First, subs (2) states that where two persons are liable to pay costs and there is no disclosure to one, the liability of the other under the costs agreement will not be affected. Secondly, s 178(1) itself identifies specific consequences of contravention of the disclosure obligations, which may arise in circumstances where there is a void costs agreement, namely that the affected party is not required to pay the legal costs until they have been assessed and the law practice must not commence or maintain proceedings for recovery of any or all of the legal costs until they have been assessed. The liability of a person to pay legal costs will ordinarily be sourced in a contract. …

…

[46]  It is evident that the purpose of the disclosure obligations is to ensure that the client of a law practice is able to make an informed choice about available legal options and the costs associated with them. That purpose or objective is promoted by avoiding a costs agreement based on inadequate disclosure. However, it is not advanced by avoiding provisions in a costs agreement which, favorably to the client, determine when and in what circumstances costs are payable. The purpose is also not advanced by avoiding a costs agreement which requires that charges be made at a rate below that which would otherwise be identified as fair and reasonable. The latter issue does not arise in the present case, but, significantly for present purposes, the effect of inadequate disclosure is not to terminate the retainer, but to allow that the services may yet be provided (or have been provided) on the basis that the practitioner can only recover fair and reasonable costs for those services. (It is possible that a client might have other relief available in circumstances where a substantial underestimation of the likely costs of a proposed course led to the client adopting a course which would not otherwise have been pursued.)

[47]  The means by which the objectives of Pt 4.3 are pursued are set out in Div 2, titled “Legal costs generally”. Section 172 provides that a law practice must not charge costs that are “more than fair and reasonable in all the circumstances”: s 172(1). Section 172(2) identifies the factors to which “regard must be had” in considering whether legal costs are fair and reasonable. Those factors are, by necessary implication, matters which must be taken into account by a costs assessor undertaking a costs assessment. Section 172(3) provides that regard must also be had to whether the legal costs “conform to any applicable requirements of this Part [and] the Uniform Rules”. Finally, s 172(4) reads as follows:

172 Legal costs must be fair and reasonable

…

(4) A costs agreement is prima facie evidence that legal costs disclosed in the agreement are fair and reasonable if—

(a) the provisions of Division 3 relating to costs disclosures have been complied with; and

(b) the costs agreement does not contravene, and was not entered into in contravention of, any provision of Division 4.

[48]  Division 4 deals with costs agreements and provides that a client of a law practice “has the right to require and to have a negotiated costs agreement with the law practice”: s 179. Section 180(1)(c) provides that a costs agreement may be made (relevantly) between a barrister retained by a solicitor on behalf of a client, and that solicitor. Further, a costs agreement “must be written or evidenced in writing”: s 180(2).

[49]  Section 181 deals with conditional costs agreements, which are costs agreements that condition the payment of some or all of the legal costs on the successful outcome of the matter to which the costs relate: s 181(1). Such agreements must also be in writing or evidenced in writing, but are subject to further constraints. Section 182 provides that a conditional costs agreement may provide for payment of an “uplift fee”, but a contingency fee calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceeding is forbidden: s 183. The agreement between the Barrister and the Solicitor was not a “conditional costs agreement” for the purposes of s 181 or 182 and did not contravene s 183.

[50]  Of importance for present purposes are the final two provisions in Div 4:

184  Effect of costs agreement

Subject to this Law, a costs agreement may be enforced in the same way as any other contract.

185 Certain costs agreements are void

(1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division is void.

Note If a costs agreement is void due to a failure to comply with the disclosure obligations of this Part, the costs must be assessed before the law practice can seek to recover them (see section 178(1)).

(2) A law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received.

(3) A law practice that has entered into a costs agreement in contravention of section 182 is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in respect of the uplift fee to the person from whom it was received.

(4) A law practice that has entered into a costs agreement in contravention of section 183 is not entitled to recover any amount in respect of the provision of legal services in the matter to which the costs agreement related and must repay any amount received in respect of those services to the person from whom it was received.

(5) If a law practice does not repay an amount required by subsection (2), (3) or (4) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction.

[51]  There are important similarities (and differences) between these provisions and s 178 (in Div 3), dealing with non‐compliance with disclosure obligations. Importantly, the Barrister’s submission that if the costs agreement were void for failure to comply with the disclosure obligations, he was nevertheless entitled to recover costs in circumstances in which he could not have recovered the costs had the agreement not been void, appears to be contradicted by s 185(2). The Barrister’s response was that the absence of any equivalent to s 185(2) in s 178 was telling in favour of a contrary conclusion because s 185 applies only to a contravention of Div 4 and not to a contravention of s 178, which is in Div 3. That is, the unqualified avoidance of the contract pursuant to s 178(1)(a) permitted him to recover costs in circumstances where the agreement would not have permitted that.

[52]  As a matter of statutory construction, that submission should not be accepted. First, it involves reading into s 185(2) a limitation, namely that it only applies to a costs agreement which was void for non‐compliance with the requirements of Div 4. While s 185(1) is concerned only with costs agreements which do not comply with Div 4, subs (2) contains no such express constraint. To imply such a constraint would tend to subvert the purpose of the legislation and introduce an element of incoherence. In accordance with s 35(a) of the Interpretation of Legislation Act 1984 (Vic), the Court should adopt a construction that would promote the purpose or object underlying the Act in preference to a construction which would not promote that purpose or object. However, before turning to explain the force of a purposive construction in the present circumstances, it is convenient to identify a number of textual factors which tell against the proposed reading down of s 185(2).

[53]  First, Div 4 is concerned with the making of costs agreements, including certain conditional costs agreements, whereas Div 3 is concerned only with costs disclosure obligations. Accordingly, it is in Div 4 that one would expect to find provisions relating to costs agreements generally. Section 184 answers that description, providing that subject to the Uniform Law, a costs agreement may be enforced in the same way as any other contract. A reading of s 185(2) as applying to a costs agreement made “void” by any provision of Pt 4.3 accords with the structure of the Uniform Law.

[54]  Secondly, consistently with that construction, the note following s 185(1) refers to the effect of s 178(1). The note forms part of the legislation and is not merely extrinsic material (Interpretation of Legislation Act 1984 (Vic), s 36(2A)(b), (c); Uniform Law, s 6(6)). The note explains why it was not necessary to address in subs (1) cost agreements void for non‐disclosure. It also excludes the possibility that, through inadvertence, the drafter of s 185(2) intended to restrict that provision to agreements which were void because of a breach of Div 4.

[55]  Finally, with respect to the text, s 178(1) is engaged in circumstances where “a law practice contravenes the disclosure obligations of this Part”. That may have an effect on a costs agreement, but the costs agreement itself does not contravene any provision of Div 3 by reason of a failure by the law practice to make proper disclosure. Section 185 identifies the costs agreement itself as that which contravenes a provision of Div 4, but, in the remainder of the section, identifies the consequences for the law practice and its entitlements including where the amount of costs recoverable exceeds the amount which would have been recoverable if “the costs agreement had not been void”.

[56]  It is this last textual point which leads to the potential for incoherence implicit in the Barrister’s submission.

[57]  The most general requirement of Div 4 is that the costs agreement be in writing (or evidenced in writing). That that provision was primarily intended to be protective of the client (or the payer) is demonstrated by the fact that adverse consequences for a failure to comply with that provision are visited on the law practice. A breach of s 180, imposing that requirement, does not open the law practice to a charge of unprofessional conduct or professional misconduct. By contrast, a breach of the disclosure obligations imposed on the law practice under Div 3 does expose the law practice to such disciplinary proceedings, and irrespective of whether there is a costs agreement: s 178(1)(d). Thus, while the law practice could not obtain an entitlement to costs from the avoidance of a costs agreement under Div 4, on the Barrister’s construction, it could obtain such a benefit as a result of its own misconduct under Div 3. This result would involve incoherence between the effects of Div 3 and Div 4. Indeed, quite apart from s 185(2), the Court would not, in the absence of a clear expression, construe a legislative provision protective of one party to allow the party in breach of that provision to obtain a benefit from its own wrongful conduct at the expense of the protected party.

[58]  It follows that s 178(1) does not have the effect of preventing the Solicitor from defending a claim for a judgment with respect to the costs incurred by the Barrister in circumstances where cl 4 of the costs agreement would have precluded that claim had the agreement not been void. That outcome is the result of the application of s 185(2), making it unnecessary to consider whether the same outcome would result from the application to the Barrister’s claim of restitutionary principles.

…

(emphasis added, footnotes deleted)

The decision is salutary as to the operational life of a barrister’s fee agreement conditions favouring the engaging solicitor.  The relevant condition in the case at hand was “payment of the fees under this agreement is conditional upon [the Solicitor] recovering the Barrister’s fees from either the client or the respondent to the appeal … to the intent that the Solicitor will only be liable for the Barrister’s fees under this agreement to the extent that one or more of those parties has put him into the necessary funds to pay the Barrister’s fees.”.  Despite the agreement being void for enforcement by the barrister, it remained that payment event had not ensued by the time the Barrister sought, unconditionally, to recover his fees.  Each case, of course, will turn on its own facts.

Mediation is an increasingly important part of practice and the appreciation of negotiation skills – both in that sphere and generally cannot be overstated. This short article from the Program on Negotiation at the Harvard Law School raises an interesting point that is not often considered. Such a technique however needs to be judiciously exercised.   

For more reading check out the Program on Negotiation at the Harvard Law School website.

For more reading from originators of the PON – the text by Roger Fisher and William Ury ‘Getting to Yes’ and the text by William Ury ‘Getting past No’.

Our John Meredith having attended both the PON Negotiation Workshop and the Advanced Negotiation Workshop highly recommends them.

In an article published in the UK Counsel Magazine on 19 July 2019, Nikki Alderson, discusses the challenges that come with being a parent and a Barrister.

“The working parent challenge is an issue affecting both men and women at the Bar. Ditch the ‘having it all’ myth, define your own version of success and learn how to live with compromise.”

Read the full article here.