Introduction

The relationship between civil or courteous dealings and good advocacy has long been recognised in the legal community.

However, a perceived decline in standards of civil behaviour between lawyers and their clients, opponents, the Courts, and the public generally, has been a recurring issue.

[T]here is no inherent inconsistency between the requirement for civility and the lawyer’s obligation to advance, within other ethical constraints, the client’s interest.

Background

There has been extensive discussion about the topic in American legal circles since at least the mid-1980s. In Queensland, the topic has been the subject of addresses by Judges of the Supreme Court to members of the legal profession in 2012 and 2014.[1]

Also in 2014, his Honour Justice Edelman said:

“It is necessary to make one final concluding comment on the manner in which this litigation continues to be prosecuted and defended. My comment concerns the importance of civility in the conduct of litigation. Modern litigation is far removed from the procedure and practices that were subjects of daily discussion between those counsel and judges sitting on the Benches of the Inns of Court and at the bar messes in the 19th century. The need for civility, from all participants in the legal process, is often forgotten today.”[2]

The above quotation expresses a reminder that, while the nature of legal practice might change with the times, some things remain the same; and the importance of civility in the conduct of litigation is one of them.

Various reasons for a perceived decline in standards have been advanced. One has been a shift in social norms. For example, in America, it has been said:

“Today our talk is coarse and rude, our entertainment is vulgar and violent, our music is hard and loud, our institutions are weakened, our values are superficial, egoism has replaced altruism and cynicism pervades. Amid these surroundings none should be surprised that the courtroom is less tranquil. Cardozo reminds us that judges are never free from the feelings of the times.”[3]

The rise of different and modern communication methods is another reason that has been advanced. Justice Philip McMurdo has said:

“One contributor has been technology. The medium of email is a particularly dangerous form of communication, because it permits the author, in the apparent security of his or her office, to type and send a message more quickly than its potential consequences can be considered. And email may prove not to be the worse medium, because for much the same reason, the use of social media could prove yet more dangerous”[4]

Still other reasons have been suggested. One reason is the increasing volume and complexity of the law that lawyers are required to know and apply. Another reason is the numbers of lawyers now practising. This may have a dual impact on how lawyers interact, firstly by reducing their capacity to have direct personal knowledge of one another; and secondly, by increasing competition between them for work. Yet another reason may be the possible “cultural” effect of more firms electing to operate in a corporate style rather than the more traditional style of partnership.

What is Civility?

Some may reasonably point out that the concept of “civility” is elusive and subjective. Perhaps for this reason, what constitutes civility in the context of legal practice has also been the subject of learned discussion. For example, Chief Justice Spigelman KC AC has said:

“… The core element of civility is the manifestation of respect for other persons. In the Western tradition, civility has long been accepted as a public virtue manifest in signs of respect to strangers in language, etiquette and in tempering the assertion of self-interest …

… All legal practitioners must, and generally do, treat judges, clients, witnesses and each other with respect. We must all ensure that proper conduct remains a principal characteristic of our legal discourse. Ours is a profession of words. We must continue to express ourselves in a way that demonstrates respect for others. …

“The tradition of civility in the legal profession goes well beyond the requirements of appearance in court. It is to be found in the full range of discourse between practitioners both oral and in correspondence.”[5]

Chief Justice Allsop KC AO has recently said:

“To maintain the public’s trust and confidence in our positions, which hold power and privilege, our actions must be in keeping with our words. …

Acting with justice and fairness also necessarily entails dignified politeness as a mark of respect for people’s humanity and entitlement to dignity. …

The maintenance of trust and confidence is an ongoing task which requires that not only the application of the law, but also the management of the court’s work, is just and has integrity and recognises the dignity of those who come before it.”[6]

It may be seen that the “core element” of civility encapsulated in the above quotation of Chief Justice Spigelman is showing, through words and conduct, respect for other people with whom lawyers deal. Further, while the requirement for civility in Court is a vital part of good professional practice, it goes beyond this and extends to the “full range of discourse” in which lawyers engage.

It may also be seen from the above quotation of Chief Justice Allsop that the overarching reason why civility is needed is simple, yet fundamentally important: it is to maintain the public’s trust and confidence in the lawyer’s role, which brings power and privilege.

The power and the privilege are the knowledge of the law, combined with the right of appearance in Court, to achieve legal outcomes that can have very serious consequences. The reality is that lawyers are important actors in the exercise of legal power, which is a power that parties to cases, and the public generally, may view with some trepidation.

An increasingly common form of discourteous behaviour seems to be the making of negative assumptions or casting negative aspersions about an opponent’s conduct or position where there is room for doubt.

Civility in the Adversarial Context

A legitimate question arises over whether there is a conflict between civility and the lawyer’s role to robustly advance a client’s case where needed. It is true that the adversarial context of litigation is a unique feature of legal practice. Lawyers are regularly called upon to perform in highly pressurised cases involving clients who are entrenched in disputes with deep levels of emotion. It is common for lawyers to act in cases having very serious consequences for clients and others.

The fact is that it is necessary for lawyers to find the balance between maintaining civil and courteous dealings and advancing clients’ cases. It is an often difficult and challenging context, but similar pressures are encountered by professionals in other areas.

Moreover, making sense of sometimes arguable and complex concepts is something lawyers do regularly. As Justice Philip McMurdo has said:

“… the term civility is no more problematical in its application than, say, negligence or unconscionability.

The content of civility, in the context of legal practice, is affected by the purposes which it serves. It is also affected by the concurrent legal and ethical obligations of the practitioner. Therefore there is no inherent inconsistency between the requirement for civility and the lawyer’s obligation to advance, within other ethical constraints, the client’s interest.”[7]

As Justice Philip McMurdo points out, there is no necessary friction between the obligations of civility and the purpose of advancing the interests of clients. Properly understood, courtesy serves that purpose. It has been said that:

“A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a real power that comes from maintaining one’s dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect, and from refusing to respond in kind to personal insult.”[8]

From the above, it may be suggested that there are ways to go about robustly advancing a client’s case on its merits. But adopting discourteous forms of conduct is not a valid way. Put in other words, this has been described as “descending” to rude behaviour:

 “Lawyers may certainly advocate their client’s case with vigour, but they should not descend to rudeness or snide remarks directed against their professional colleagues …

It is the task of the lawyer to argue his or her client’s case in a reasoned and dispassionate manner, without descending into personal invective against the lawyers appearing for the other party. Vitriolic letters of this nature have no place in the practice of the law.”[9]

Examples of Incivility

In some cases, what amounts to discourtesy will be clear to most.

Discourtesy may arise in the language and tone used in dealings, especially correspondence. This includes language that is insulting, abusive, or foul in form or tone. Language that is discriminatory in all its recognised forms has no place in legal discourse.

Other examples include displaying sarcasm, exaggeration, impatience, and condescension. Wilfully failing to use appropriate manners, or mispronouncing names or titles are forms of disrespect. Referring to confidential or without prejudice communications in open correspondence is discourteous.[10]

The personalisation of correspondence is another area that may give rise to problems. For example, direct personal criticism of an opponent in terms of their competence, experience, education, or place of employment is inappropriate. So is seizing on mistakes and attempting to humiliate opponents on account of them.

An increasingly common form of discourteous behaviour seems to be the making of negative assumptions or casting negative aspersions about an opponent’s conduct or position where there is room for doubt. That is, their position or conduct may instead be reasonably explained by a genuine error or circumstances beyond their control.

The use of correspondence itself may be discourteous. Swamping an opponent with numerous letters or emails without valid reason is one example. On the other hand, not responding to correspondence where a response is reasonably required is another obvious form.

Sending correspondence outside of ordinary business hours or days without justification may also constitute an example of incivility in practice. It is without question that it is discourteous to communicate directly with a party who is known to be represented by lawyers.

Threats of personal costs orders or the making of disciplinary complaints for unethical conduct is undoubtedly inappropriate if done without a proper basis.

Other examples include misquoting an opponent or party or leaving out proper context to the situation being addressed. Deliberately misleading or causing confusion about a situation is also behaviour that is beyond the bounds of civility.

Some practitioners will have encountered correspondence that focuses in an overly pedantic way on matters of form, such as grammar and spelling; or adopts a style of over-using quotations from the correspondence being responded to.

Many of the above behaviours would also amount to discourtesy in the context of oral advocacy in Court. To these may be added: interrupting the Judge or opponents; ignoring conventions in relation to the order of speaking, or seating, including remaining seated while an opponent is addressing the Court or taking an objection; and wilfully failing to answer a question asked by the Judge. It is unacceptable to be discourteous to other Court staff, including registrars, associates, bailiffs, security personnel and registry staff.

Guiding Principle?

As seen above, some forms of conduct will always be inappropriate. But sometimes the issue may be less clear. In those cases, what can be used as a guiding “principle”?

It has been said by the Full Court of the ACT Supreme Court:

“… practitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.”[11]

On this analysis, the answer may lie in seeking to deal with others with the honesty and fairness that one would be required to display in Court. But this in no way is intended to enshrine an unattainable standard of behaviour that subordinates the need to appropriately advance a client’s interests. Indeed, legitimate criticism must sometimes be made of others in the course of practice, and those criticised may well regard communications containing such criticism as discourteous or provocative.

This has also been judicially recognised:

“However, it seems to us that that principle in no way diminishes the right, indeed the duty, of a solicitor to represent his or her client’s interest forthrightly and without fear or favour. … Such communications may well be regarded as discourteous and provocative [by those criticised] but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally.”[12]

Accepting the relationship between courteous dealings and maintaining public trust and confidence in the legal system, it may be that the “principles of honesty and fairness” referred to in the above quotation are not confined to what lawyers think is honest or fair (or “normal”), but what the public is entitled to expect in the provision of legal services.

A useful observation is made by Justice Henry on this topic:

“… When ego driven, aggressive correspondence sees the light of day in court, it is an irritating distraction from a proper understanding of the merit of its author’s client’s cause.”[13]

The above quotation refers to correspondence seeing “the light of day in court”. Some practitioners may be aware of this touchstone for the appropriateness of correspondence; that is, would the author have any concerns if the correspondence about to be sent “sees the light of day in Court”? The same test could be usefully adapted to any form of professional conduct.

Deliberately misleading or causing confusion about a situation is also behaviour that is beyond the bounds of civility.

Civility and Good Advocacy

How does maintaining civil standards of behaviour accord with the task of being a good advocate?

First, the disapproval that flows from discourteous behaviour undermines the personal reputation of an advocate. It is recognised that a strong personal reputation is critical to good advocacy. Perhaps this is because a central aim of a good advocate is to be persuasive, and a key to being persuasive is to be reliable. Reliability partly depends upon reputation. Poor behaviour tends to become notorious generally, which has the potential to lower the opinions of others about the individual advocate, and the legal profession generally. It has been judicially observed that:

“Those members of the legal profession who seek to win a momentary advantage for their clients without observing the proper courtesies invite correction by the court and disapproval of their colleagues … To the extent that solicitors act in this way, they run the risk of destroying the confidence and mutual respect which generally distinguishes dealings between members of the legal profession from other dealings in the community.”[14]

This disapproval also has the potential to rob a practitioner of the feelings of enjoyment and self-worth that otherwise might come from legal practice. Conversely, approval has the potential to enhance these feelings, and the bolstering of the advocate’s personal reputation creates more opportunities for success as an advocate.

“… civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism’s main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.”[15]

Secondly, civility in practice is reflected in ethical rules governing the practice of law in Australia.

For example, the Barristers’ Conduct Rules are made pursuant to certain principles, including that barristers must maintain high standards of professional conduct. The rules are construed to promote principles such as this. However, the rules are not intended to be a complete code of conduct. Relevantly, they expressly provide that a barrister must not engage in conduct that is discreditable to a barrister or prejudicial to the administration of justice. Further, a barrister must not engage in conduct that is likely to diminish public confidence in the legal profession or administration of justice; or otherwise bring the legal profession into disrepute.[16]

Similar obligations are placed upon solicitors. There is a specific requirement in the Australian Solicitors’ Conduct Rules for solicitors to display courtesy in all dealings in the course of legal practice.

Other rules are relevant in this context. For example, a solicitor must not:

Make statements grossly exceeding legitimate assertions of rights or entitlements of clients.

Use tactics beyond legitimate advocacy or primarily designed to embarrass or frustrate.

Allege unethical conduct unless there is a proper basis.[17]

Numerous cases over time show that failing to meet the requirements of civil and courteous practice may breach ethical rules. Such cases are too numerous to mention here.[18]

Thirdly, civil and courteous practice contributes to the efficiency of the legal system, and the advocate personally. The benefit of civility to the functioning of the legal system has been recognised in legal commentary. For example, it has been said that:

“Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others: corporations would become irresponsible in conducting their business: governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.”[19]

Many practitioners may have experienced how discourteous behaviour can have a direct impact on the time and cost needed to conduct a matter. The reasons for this are manifold. It provokes a response from the recipient that may be unnecessary, or at least can generate lengthier communications than might otherwise be the case. Taking combative positions such as refusing to agree to reasonable extensions of time to take steps or manufacturing avoidable “urgent” situations are examples. This may provoke retaliatory or antagonistic responses from the recipient, which provokes yet another counter-response and the pattern repeats.

This pattern also increases the likelihood of interlocutory applications that might be avoidable. It decreases the willingness of parties to make appropriate admissions and concessions with the result that the disputed issues in the case are not narrowed, and the proceeding takes more days to hear and determine. These outcomes all escalate costs and delay.

Fourthly, courtesy enhances an advocate’s potential to assist the Court. Discourteous practice increases the potential for lawyers, and their clients, to receive criticism and reciprocal aggression from Judges, their opponents, their own clients, and other parties involved in a case.

Most advocates would agree that this type of practice creates additional stress and anxiety in the daily performance of the role. Undue stress and anxiety is obstructive to smooth performance as an advocate, and increases the likelihood of making errors, which in turn potentially attracts more criticism. Performing the role of an advocate can be stressful enough, so it makes sense to avoid any additional causes of it.

The net result of this is that it diminishes the potential for the advocate to perform the important function of assisting the Court; as well as satisfying the expectations of instructing solicitors and clients.

Fifthly, civility is conducive to being persuasive. This is because incivility in all its forms is grounded in emotion, and not logic or reason. It is a distraction from the display of logic and reason that are a key to persuasion.

Judges having to deal with incivility are distracted from consideration of the real issues, as noted by Justice Henry in the quotation above. It is not good advocacy to distract a Judge. Below is an extract from a case contained in a well-known text on advocacy, Glissan & Tilmouth, to similar effect:

“There began, almost from the commencement of the case, a wrangling or quarrelling or bickering between counsel, and it lasted throughout the case …

The training of one who is called to the Bar in this country is intended to help [them] to understand that a member of the Bar is a helper in the administration of justice. [They are] there to help the judge, and, when there is a jury, to help the jury, to arrive at a proper result in the dispute between the parties. If a case is conducted as this one was, the judge is deprived of the assistance which [they are] entitled to expect from counsel. Continuous bickering becomes a burden for everyone in court – for judge and for jury – and it is almost impossible for justice to be done if that goes on. …”[20]

As can be seen from the above quotation, the behaviour of the advocates was described by the Judge as a “burden for everyone”. What good advocate wants their work to be described in that way?

The distraction from logic and reason that emotion causes has been said to lead to the loss of objectivity that good advocacy requires:

“Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client’s dispute.”[21]

Sixthly, courteous communications assist in resolving, or at least narrowing, disputes. An understanding of the parties’ mutual positions is promoted by constructive dialogue, and that dialogue is best cultivated by civil communications rather than aggressive attacks. These tend to escalate disputes and entrench defensive positions, which derogate from the likelihood of appropriate concessions being made that assist resolution.

In the will of Fay Daphne Butterworth [2022] QSC 212

Finally, avoiding unduly combative communications can help to achieve better outcomes for clients. A recent case of the Supreme Court of Queensland is illustrative.

A costs order had been made in a proceeding concerning two Wills. The Court determined a subsequent application that sought to alter that costs order, and sought the costs of the application to alter.

The only difference between the two Wills was that the first 2002 Will appointed two executors, being the testator’s daughter and a son-in-law; and the second, 2015 Will appointed only the son-in-law as executor. The Court observed:

“… a reasonable observer might conclude that there was little or no scope for dispute. That view underestimates the capacity of these parties and/or their lawyers to find conflict.”[22]

The substantive issues in the case related to the testamentary capacity of a testator. Those issues fully resolved, and the only remaining disputed issue concerned costs.

The parties embarked on a lengthy exchange of correspondence. It included correspondence with the following features:

• Giving notice requiring a party for cross-examination two days prior to the hearing, but the notice was not pursued and the reasons for giving it were not explained.
• Allegations of unnecessarily causing costs to be incurred, and of a party’s solicitors seeking to take advantage of a mistake and misrepresenting positions.
• The provision of a draft order to the Court by a party without first obtaining the consent of the other party.
• Nine emails being sent between a Friday and a Sunday and a request for the Court to list the application urgently.
• Correspondence described by the Court as “combative” and referring to opponents in personal terms.

An understanding of the parties’ mutual positions is promoted by constructive dialogue, and that dialogue is best cultivated by civil communications rather than aggressive attacks.

In the event, the Court made the correction to the order that was sought but on the issue of the costs of the application the Court considered that there were some “special features” in the case, described as follows:

“… as can be seen from the rather sorry tale explained above, the parties have indulged in a combative correspondence featuring unsubstantiated allegations of poor professional conduct, pedantry, clinging to a non-existent agreement on costs, and an unwillingness to adopt a reasonable, practical stance. Of course, those features of the skirmishes may be because of the parties themselves are at loggerheads. Or it may be because the solicitors have an antipathy to each other. Or it may be both.

In my view, however, the stances taken on both sides can hardly be said to be reasonable or consistent with the obligation to proceed in an expeditious way.  A reasonable approach by both parties and their solicitors would have resulted in a corrected order without the need for aggressive correspondence or a contested application. The stances taken by both sides have contributed to significantly increased costs. It would be unfair for the beneficiaries of the estate to be required to meet those costs, whether on a standard or an indemnity basis.”[23]

The Court declined to order that the parties’ costs of the application be paid out of the estate and instead the parties had to meet their own costs.

Conclusion

It is hoped that the above discussion demonstrates the strong link between civility and good advocacy, as well as providing some practical guidance about meeting appropriate standards in situations that may be unclear.

[1]     Justice Henry, Ethical Issues in Correspondence Between Solicitors, address to the FNQLA, 2012; Justice Philip McMurdo, Civility and Professional Courtesy, QLS Symposium, 2014.

[2]     Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 4) [2014] WASC 282 at [59].

[3]     Justice M Bolan, Issues of Civility in the Courtroom:  The Role of the Trial Judge, 2001, cited in Justice JW Quinn, A Judge’s View: Things lawyers do that annoy judges; things that they do that impress judges,Family Law Institute, Toronto, 2012.

[4]     Justice Philip McMurdo, QLS Symposium, 2014.

[5]     Chief Justice Spigelman KC AC, Opening of the Law Term Dinner, Law Society of NSW, 2006.

[6]     Chief Justice Allsop KC AO, The Culture of the Legal Profession: Lessons of the Past and Hope for the Future, QLS Symposium, 2022.

[7]     Justice Philip McMurdo, QLS Symposium, 2014.

[8]     Justice M Durant, “Views from the Bench: Civility and Advocacy”, (2001) Utah Bar J 35.

[9]     Towers & Atkins (No. 2) [2015] FCCA 3537 at [58-59].

[10]    Dal Pont, Lawyers’ Professional Responsibility, 7th ed, [21.145 – 21.285]; see also QLS Guidance Statements.

[11]    Lander v Council of the Law Society of the ACT [2009] 168 ACTR 32 at [23] citing reasons of the ACT Legal Practitioners’ Disciplinary Tribunal.

[12]    Lander v Council of the Law Society of the ACT [2009] 168 ACTR 32 at [36] citing reasons of the ACT Legal Practitioners’ Disciplinary Tribunal.

[13]    Justice Henry, “Ethical Issues in Correspondence between Solicitors”, address to the FNQLA, 2012.

[14]    Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 667 per Kirby ACJ.

[15]    Butts v State 546 S.E.2d 472 (Ga.2001) per Benham CJ, Supreme Court of Georgia, USA cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner, p 18.

[16]    Barristers’ Conduct Rules, rr 5(b), 6, 10, 12.

[17]    Australian Solicitors’ Conduct Rules, rr 4, 5, 32, 34.

[18]    See for example the cases discussed in The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, QLS, pp 8 – 9; Corones & Ors, Professional Responsibility and Legal Ethics in Queensland, 2nd ed at [5.150 – 5.175].

[19]    A Harris, The Professionalism Crisis – The ‘Z’ Words and Other Rambo Tactics: The Conference of Chief Justices Solution,53 SCL Rev 549, pp 577-578 cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner.

[20]    Beevis v Dawson [1957] 1 QB 195 at 201 cited in Glissan & Tilmouth, Advocacy in Practice 3rd ed at p 218.

[21]    Legal Profession Complaints Committee v In de Braekt [2011] WASAT 1 at [139].

[22]    In the will of Fay Daphne Butterworth [2022] QSC 212 at [3].

[23]    In the will of Fay Daphne Butterworth [2022] QSC 212 at [59 – 60].

In Ezekiel-Hart v Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 (8 August 2023), Curtain AJ, sitting in the Supreme Court of the Australian Capital Territory, wrote concerning the practice engaged in, from time to time, of parties, whether represented or self-represented, communicating electronically with a judge – invariably through the judge’s associate – bereft of prior consent of all other parties to the fact, or terms thereof. After noting that the practice was contrary to relevant Practice Direction and the statutory Conduct Rules for solicitors and barristers respectively, his Honour gave approval to the following statements in the authorities:

The act of a legal practitioner in communicating directly with a judge’s chambers must not be viewed as some casual, post-modern opportunity to provide useful information, but it is a step which must be taken with great care, less the impartiality of the judge be carelessly compromised.  Legal practitioners should discuss the proposal to communicate with the judge’s chambers in advance with the representatives of all active parties.  The consent to the proposal from all parties should be obtained.  Copies of the communication should be sent to all concerned, at the same time it is sent to the associate.  If consent is not forthcoming, the suitability of the time-honoured approach of arranging with the associate for the matter to be re-listed should be considered.  If urgency precludes that approach, any communication to the judge’s chambers should explain the problem, without disclosing any information for which the unanimous consent for a disclosure to the judge has been obtained, and appropriate directions sought from the judge … Ultimately this is an ethical issue that depends upon legal practitioners taking the greatest care to comply with their obligations.  It is always possible that exceptional situations will arise, that will require a novel course to be adopted.  That should not give rise to problems, provided that legal practitioners consider in a conscientious way how they should proceed. …  Notions of expediency however well-intentioned must … be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance).

(emphasis added)

The relevant conduct rules for barristers in Queensland – reflecting the rule for solicitors – mirrors those considered by Curtain AJ.  Relevantly the Barristers’ Rule 2011 provides:

Duty to Opponent

…

52. A barrister must not confer with or deal directly with any party who is unrepresented unless the party has signified willingness to that course.

53.  A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

a. the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or

b. the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.

54. A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in Rule 53.

55. A barrister must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 53(b), other than the matters specifically notified by the barrister to the opponent when seeking the consent of the opponent.

Curtain AJ’s reasons for judgment – which consider the authorities at length – may be found here.

A number of recent decisions canvass the ethical obligations of, and constraints upon, lawyers who find themselves assisting an expert – sometimes at their request and sometimes by necessity to get the job done – draft their report for delivery in litigation.

In Landel Pty Ltd v Insurance Australia Limited [2021] QSC 247 (Landel),Dalton J (now Dalton JA) addressed the issue squarely with an adjuration that lawyers avoid “coaching” but otherwise be ready to assist in producing an intelligible, and admissible, report. 

In New Aim Pty Ltd v Leung [2023] FCAFC 67  (New Aim), the Full Court of the Federal Court – overturning the trial judge’s decision excluding an expert report for want of disclosure of lawyer involvement in drafting – observed that lawyer assistance may be acceptable in order to sensibly and reasonably achieve the outcome but ordinarily ought be disclosed on the face of the report or otherwise to the opposing party.

In Andrews v Kronospan Limited [2022] EWHC 479 (Andrews), Senior Master Fontaine of the UK Queen’s Bench Division – upon interlocutory application in a class action for injunctive relief and damages on account of alleged nuisance – ordered that the plaintiff class members be precluded from relying at trial upon evidence from their longstanding liability expert on account of the plaintiffs’ solicitors illicitly conferring with such expert in and about the drafting of the “joint statement” by the respective experts (referred to in Australia as a “conclave report”) in contravention of the procedural rules precluding expert – lawyer contact in that space.

In Landel, the court wrote concerning a poorly drafted report (at [19]-[20]:

…[W]hile 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. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.

(emphasis added)

In New Aim, the five member appellate court wrote of the lawyer’s assistance afforded the expert in drafting the report:

[120]  There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.

[121]  The primary judge observed at [76] that, if legal practitioners are involved in the drafting of an expert report that fact must be disclosed in the expert report. This may well be desirable, forensically or otherwise, but there is no legal obligation as such to do so. Whether there is an ethical obligation to do so depends on the particular circumstances.

[122]  The primary judge also observed at [76] that all correspondence relating to the preparation of the report must be disclosed. Again, this might be desirable, but there is no legal obligation as such to do so. Again, whether there is an ethical obligation to do so depends on the particular circumstances.

[123]  As to the primary judge’s observation that any oral advice conveyed by a legal practitioner to the expert should be documented and disclosed in the expert’s report, the legal or ethical necessity of this depends on all of the circumstances, including the nature of the advice conveyed to the expert and the relevance of it, if any, to the report or opinions expressed.

(emphasis added)

In Andrews, despite the expert having been engaged by the party for three years and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had closely liaised with his briefing solicitors concerning the proposed content of a conclave report, in breach of the UK Practice Rules – ordered that the briefing party be precluded from reliance on Dr Gibson’s opinion.

The Uniform Civil Procedure Rules 1999 (Qld) – like their interstate analogues – similarly proscribe the conclaving expert and the original briefing solicitor or counsel conferring apropos of drafting of the experts’ joint conclave report:  r 429A(2).

The court wrote:

[17]  The Claimants having accepted that there have been “serious transgressions” of the relevant rules and practice directions, the issue for me to determine in this case is the sanction, if any, to be imposed, in accordance with guidance given in the authorities. I draw on the authorities for some assistance.

[18]  The most recent decisions are those in BDW (see Paragraph 12 above)and Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC). In BDW the defendant’s expert in geotechnical engineering revealed in cross examination at trial that he had sent a first draft of the joint statement to the defendant’s solicitors and having received feedback, had made some changes to that draft as a result. The judge concluded (at [18]), that this was “a serious transgression” of CPR 35PD paragraph 9. The judge upheld the complaint that it was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide. However he concluded that the expert was genuinely unaware that his conduct in this respect was inappropriate, and that there was no basis for considering that he had modified in any significant way the substance of his opinion as discussed with the other party’s expert. Accordingly no sanction was imposed on the expert.

[19]  The judge stated at [18]:

“… it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12 (5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to reopen the discussion by this means.”

…

[22]  Dana concerned very serious breach of the rules by the defendant’s three technical experts, which was not revealed in full until part way through the trial. This case involved the most serious behaviour by those experts, some of which had previously been the subject of an order granting relief from sanction subject to certain conditions. Not only did the judge find that the experts had not complied with those conditions, so that the defendant no longer had the court’s permission to rely on those experts, but she considered that the experts’ breaches of Part 35, 35PD and the CJC Guidance were so serious that they would be sufficient in themselves, without the breach of the conditions imposed by the previous order, to justify the refusal of the court to allow the defendant to rely on its technical experts (at [87]).

[23]  Mrs Justice Joanna Smith referred in her judgment to two previous authorities at [66]-[68]:

“66.… I should reiterate what was said by Fraser J in Imperial Chemical Industries Ltd v Merit Merrill Technology Ltd [2018] EWHC 1577 at [237];

“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explain[ed] to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR part 35, practice direction 35. Every expert should read it.”

67. Fraser J went on to set out some examples of the application of the well known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68…. For present purposes, I note the first duty of an expert witness in a civil case as identified by Creswell J (at page 81) in The Ikarian Reefer:

“Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce)”

[24]  In my judgment the breaches of Rule 35, Practice Direction 35 and the CJC Guidance by both the Claimants’ solicitors and Dr Gibson in respect of appropriate conduct relating to the period of joint discussions preparatory to a joint statement being produced by experts, were more serious than in BDW, where there was only a single communication between the expert and the solicitors. Here there has been continuous contact, soliciting and provision of comments on the various progressive drafts of the joint statement, and provision of information on the joint discussions.

[25]  The facts in Dana concerned a particularly egregious example of the most flagrant breaches by the experts concerned, where technical input was sought and provided to the experts by the party by whom they were instructed at every stage of the process, without the knowledge of the other party. The judge would clearly have had no other option but to refuse the defendant permission to rely on those experts. The facts in this case are not comparable to those in Dana, but the principles applied are equally relevant.

[26]  In this case there were continuing discussions either by telephone or email or by written commentary on the draft joint statement in its various progressions from 26 May 2021 to June 2021 and recommencing in November 2021. Although the majority of the total of 68 comments noted on the draft joint statements relate to typographical and formatting issues, it is accepted by the Claimants there were at least 16 comments relating to “advice and suggestions as to content” in respect of the joint discussions/draft joint statement….

….

[32]  The other factors which I consider should be taken into account in determining what the sanction should be are as follows:

i) The Claimants’ solicitors failure in November 2021 to reveal the full extent of their communications with Dr Gibson, the correspondence suggesting that the first contact had been on 17 November 2021, and their reluctance to do so until the persistence of the Defendant’s solicitors made it apparent that they would not let the issue go.

ii)  The Claimants’ solicitors informed the Defendant’s solicitors that the only reason for that contact by Dr Gibson on 17 November was “to notify us that Dr Gibson/Dr Datson’s communications regarding their joint statement were being resumed” which was clearly only part of the picture. It is apparent, having seen Dr Gibson’s email of 18 November 2021 sending the next version of the draft joint statement [1/66] and the telephone attendance notes of 17 and 18 November 2021 [1/65, 67], that Dr Gibson was intending to resume his previous conduct in providing information about the joint discussions and soliciting assistance from the Claimant’s solicitors. I therefore do not consider that Ms Eedy’s [the Claimant’s solicitor’s] explanation as to why there was no disclosure of the previous discussions with Dr Gibson in May and June 2021 is satisfactory…

iii)  Dr Gibson has not informed the court of the reason for his conduct, i.e. whether he was unaware of his obligations as an expert, and if so, why, or whether he was aware, in which case his reasons why he thought it appropriate to transgress those obligations.

iv)  Dr Gibson produced his addendum report in July 2021 at a time when Dr Datson was unaware of his prior discussions with the Claimants’ solicitors.

[33] The factors in favour of permitting the Claimants to retain Dr Gibson as their expert are as follows:

i)  Dr Gibson has been involved for over 3 years, and I am informed that some £255,000 have been spent on his fees.

ii)  If permission to rely on Dr Gibson is revoked that would be a severe blow to the Claimants, a total of 159 households, all likely to be of modest means, who will be adversely affected by a decision to revoke permission.

iii)  Even if the Claimants are permitted to rely on alternative expert evidence it will involve them in considerable additional costs and cause further delay to an already long running case.

iv)  The Defendant is now aware of the extent of the discussions with Dr Gibson, so that the Defendant can cross examine Dr Gibson at trial in relation to whether he has changed his opinion as a result of those communications.

Conclusion

[34] Taking all the above factors into account, and applying the overriding objective, I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.

…

(emphasis and square brackets added)

The ethical lesson evident in these cases is that lawyers – counsel and solicitors – need be thoughtful and exercise clear appreciation of where the lines are drawn – by the ethics and procedural rules concerning expert witnesses – such that they do not approach, let alone cross such metaphorical lines.  The price of not  doing so could be either preclusion of their client being able to rely upon the elicited expert opinion, regulatory censure, or both.

Integrity of Evidence – Annotations to rules 68 – 74 of the Barristers’ Conduct Rules

Rule 68 – 74 of the Bar Association of Queensland – Barristers’ Conduct Rules relate to the integrity of evidence.  These include such matters as the prohibition as against coaching: r.68(b), a witness can however be questioned and tested in conference: r.69, unless as provided for in r.71 (such as relating to undertakings to the court), a prohibition of conferring with more than one lay witness at a time: r.70,  unless as expressly provided for (such as the prior consent of the opponent), a barrister must not confer with a witness while that witness remains in cross examination: r.72, unless as provided for in r.74 – not to prevent or discourage a witness from conferring with an opponent: r.73. The knowledge, understanding and compliance with these rules is critical in the practice of a barrister.  To assist, below are some annotations with respect to rules 68 and 70.

Rule 68 provides:

A barrister must not:

a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

b. coach a witness by advising what answers the witness should give to questions which might be asked.

1. Overriding guidance with respect to dealing with witnesses is provide by rule 25 – the barrister’s overriding duty is to the Court and the administration of justice, and rule 26 – a barrister must not knowingly mislead the Court on any matter.
2. The text ‘Professional Responsibility and Legal Ethics in Queensland’ says with respect to r.68 BCR:[1]

The proscription extends to both giving a positive indication as to what evidence should be given and to a negative suggestion as to the undesirability of giving certain evidence, as well as to the advantages of selective forgetfulness. 

That is not to say that a barrister should not prepare witnesses by, for example, simulating the giving of evidence or cross-examination.  Such practices allow lay witnesses to become used to the forensic environment and enhance their ability to give evidence in a way which assists the court.  Although examining the question in the civil context, Ipp J considered that there was “nothing improper in preparing witnesses this way.  It is indeed desirable for lawyers to prepare witnesses, particularly those who give lengthy or complex evidence, for trial.”[2]

Indeed, a barrister would be derelict in his or her duty to the client if they failed to take advantage of the opportunity to gauge how a witness will respond in court, and to identify aspects of the evidence which require clarification. 

3. The concept of coaching a witness is clear enough. In an 1880 New York disciplinary case of In re Eldridge[3] the judge said:

[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.

4. When considering the permitted professional boundaries involved in lawyers conferencing with any witness, Young J (as his Honour then was) said In Re Equiticorp Finance Ltd; Ex parte Brock:[4]

It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice.  That advice may certainly include:

(1)    advice that the witness should refresh his or her memory from contemporaneous documents; 

(2)    directing the witness’ mind to the point about which questions may be asked; 

(3)    giving the witness a sketch of court procedure; 

(4)     directing the witness’ attention to points in his or her evidence which appear to be contradictory or fantastic; 

(5)    reminding the witness to bring to court all relevant documents; 

(6)    advising the witness as to the manner of answering questions (for example, ‘In cross-examination listen to the question, just answer the question asked with as concise an answer as possible’); and 

(7)    giving advice as to appropriate dress and grooming.

There may be other permitted areas.

5. In the text ‘Cross on Evidence’, Heydon says on the role of the legal practitioner and the preparation of expert reports:[5]

…. It is legitimate for legal practitioners to identify the real issues for the expert, to indicate when the report fails to direct itself to the real issues, to point out obscurities and gaps in the reasoning, to indicate that the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on them, and to indicate that the report does not explain how the opinion is substantially based on the expert’s specialised knowledge.[6] …

6. The learned author of the text ‘Expert Evidence’[7] refers to the comments of McDougall J in Thiess Pty Ltd v Dobbins Contracting Pty Ltd:[8]

21. Lawyers must play an active, and important, part in the preparation of statements of expert evidence. First of all, the lawyers for a party who proposes to rely on expert evidence must inform the expert of the assumed facts on which his or her opinion is to be based. To enable the opinion to have any value, the statement of assumed facts (and of course, those facts include documents) must be comprehensive.
22. Next, the lawyers should do what they can to ensure that the expert expresses his or her opinions in a way that demonstrates clearly the application of specialised knowledge to those assumed facts and the reasoning process that leads to the opinions expressed. Of course, it is a matter for the expert, and only the expert, to formulate those opinions, and to employ an appropriate reasoning process in doing so. However, if the expert’s statement of evidence is to be of any real utility, the lawyers who have retained the expert must do what they can to ensure that the reasoning process is adequately displayed. In this case, the lawyers for both the plaintiffs and Mr Bate appeared to be either ignorant of, or uncaring as to, their responsibilities in this regard.

7. Coaching was also considered by Martin CJ in Majinski v State of Western Australia:[9]

Questioning of the witness moves beyond “proofing” to impermissible “coaching” when the witness’ true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness…  A solicitor or counsel should not advise a witness as to how to answer a question… By way of example, in Day v Perisher Blue Pty Ltd the defendant’s solicitors prepared an extensive document for the defendant outlining “possible areas of questioning (to be passed onto the prospective witnesses)” and included suggestions as to appropriate responses which would be in line with the defendant’s case. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and “tainted” the defendant’s case.

8. Dal Pont says in his text ‘Lawyers’ Professional Responsibility’:[10]

The lawyer’s professional responsibility to a client dictates that he or she should prepare witnesses (including the client) for the type and manner of questioning, and not put a witness on the stand without knowing in advance how he or she will respond to vital questions.[11]  The level of preparation is influenced by the experience of the witness.[12]  Witness preparation of this kind can serve the efficient administration of justice and save time.[13]

9. The involvement of legal representatives in the preparation of expert reports was considered by Callinan J in Boland v Yates Property Corporation Pty Ltd, when his Honour said:[14]

… I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. …

10. Dalton J helpfully discussed the assistance that legal representatives can usefully provide in the process of the preparation of expert reports In Landel Pty v Ltd & Anor v Insurance Australia Limited [2021] QSC 247, when her Honour said:[15]

[19] First, 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.

[20] In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems.  Conferences like this are a proper, necessary part of preparing a case.  In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.

[21] Any disciplined and structured conferences with Dr Macintosh would have revealed that there were faults in his opinions which went beyond matters of expression and presentation.  They would have revealed significant contradictions, errors and gaps in reasoning in his reports.  It is permissible for matters of substance like this to be drawn to an expert’s attention in conference with lawyers, and remedied if the expert is able and willing to do so.  Again, coaching is not permitted, and drafts will be disclosable. 

[22] The course of this proceeding shows the importance of attention to the reports of experts by the lawyers running the case, not just to achieve a comprehensible and rational expert opinion for use at the trial, but to evaluate the strength of the case sought to be advanced by the litigant.  In this case, had early attention been paid to what reasoned opinion Dr Macintosh could give, the plaintiffs’ lawyers would have understood the weaknesses in their expert case at a stage of the litigation when there might still have been alternatives open to them.  Instead, it appears that the only effort the plaintiffs’ lawyers made to come to terms with Dr Macintosh’s opinions was immediately prior to trial, by which time any such avenues were very limited. …

Rule 70 provides:

A barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time:

a. about any issue which there are reasonable grounds for the barrister to believe may be contentious at a hearing, and

b. where such conferral could affect evidence to be given by any of those witnesses,

unless the barrister believes on reasonable grounds that special circumstances require such a conference.

11. In Landel, Dalton J also said with respect to the necessity to confer with witnesses separately:[16]

…. However, I am critical of the defendant’s lawyers for meeting with both experts together.  Lay witnesses should never discuss their evidence with each other.  Experts see each other’s reports before trial, and sometimes there are Court-ordered conferences between expert witnesses.  Here, where the plan apparently was to present two independent views to the Court, meeting with both experts together, particularly before they had committed their views to writing, obviously had the potential to compromise that independence.  

12. In Day v Perisher Blue Pty Ltd Sheller JA observed:[17]

It has long been regarded as proper practice for legal practitioners to take proofs of evidence from law witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly with other witnesses. … In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper.

[1] By Corones, Stobbs and Thomas, 2nd ed, 2014, says at para [12.60], pages 457 – 458.

[2] Justice D A Ipp, “Reforms to the Adversarial System in Civil Litigation – Part II” (1995) 69 Australian Law Journal790 at 799. 

[3] In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880), cited at fn., 4 in Wydick R. C. ‘The Ethics of Witness Coaching’ Cardozo Law Review (1995) 1, 17, 1.

[4] (1992) 27 NSWLR 391 per Young J at 395. These comments of Young J were referred in the article by Declan Kelly SC (now Justice Kelly) and Dan Butler, “Ethical Considerations in Dealing with Experts”, BAQ Seminar 1 December 2010 and ‘Hearsay’ dated 24 February 2011. This paper also considered the Australian and UK positions with respect to the permissible limits of the involvement of lawyers in the preparation of expert reports, as did the paper by Blake SC and Gray in ‘Can Counsel Settle Reports’ (2013) 119 Precedent 16 – 20.

[5] 11th ed, 2017, paragraph [29080], page 1118.

[6] See Phosphate Co-operative Co of Australia Ltd v Shears (No 3) (Pivot case) [1989] VR 665 at 680; Vernon v Bosley (No 2) [1999] QB 18 at 56-60; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [16] and [19]-[21]; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 at [227]-[231] R v Doogan (2005) 158 ACTR 1 at [119] …

[7] By Ian Freckleton QC, 6th ed, 2019, paragraph [5.10.360], page 316.

[8] [2016] NSWSC 265 (17 March 2016) at [21] – [22].

[9] [2013] WASCA 10 at [32].

[10] 7th ed, Law Book Co 2021, paragraph [17.165], page 602.

[11] R v Chapman (1958) 26 WWR 385 at 393 per O’Halloran JA.

[12] R v Noble (2000) 117 A Crim R 541 at [19] per Pinucs JA.

[13] See Applegate, “Witness Preparation” (1989) 68 Tex L Rev 277.  It has been noted, to this end, that witness preparation is in line with the rules noted at [17.250], which require limiting evidence to issues genuinely in dispute and taking up as little as possible of the court’s time: Legg, “Preparing Witnesses Effectively” (2003) 41 (Dec) LSJ 60.

[14] [1999] HCA 64 at [279]; 74 ALJR 209; 167 ALR 575 (9 December 1999)

[15] At [19] – [22].

[16] At [26].

[17] Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 at [30].

Overview

On 1 April 2023, the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (Qld) came into force, bringing with it a new Code of Practice – the Managing hazards at work Code of Practice 2022 (the Code).

These regulatory changes emphasise the importance of addressing and managing psychosocial hazards and risks and require all ‘persons conducting a business or undertaking’ (PCBU) to do so by applying the risk management provisions of the Work Health and Safety Regulations 2011 (Qld).

As barristers we fall within the definition of a PCBU, meaning we owe obligations to:

1. any person we employ (e.g. support staff), either via our own business or through a Chambers service company;
2. those who are exposed to our businesses (e.g. visitors to Chambers and clients); and
3. ourselves as self-employed operators.

What is a psychosocial hazard?

Psychosocial hazards refer to non-physical factors in the workplace that can pose risks to the mental health and well-being of an individual. The Code outlines some common psychosocial hazards (many of which will be familiar to those of us in practice), including:

1. High job demands: Such as unachievable deadlines or unrealistic expectations.
2. Low job control: Such as being excessively micromanaged.
3. Poor support: Including inadequate training and guidance.
4. Low role clarity: Occurring when tasks frequently change.
5. Poor workplace relationships: Which can lead to conflicts and stress.
6. Exposure to traumatic events or material: Particularly relevant to those of us practicing in crime, family and personal injury.
7. Aggression: Including yelling, physical intimidation and passive aggressive behaviour.
8. Fatigue: Resulting from long hours and demanding workloads.
9. Bullying: Including belittling comments, differential treatment or ostracising.
10. Harassment: Including sexual harassment, poorly thought out jokes and other forms of mistreatment.

These psychosocial hazards can manifest in various ways, from sustained low-level stress to immediate harm.

While many of these factors may be considered by some to be part and parcel of the legal profession, we have proactive obligations to manage these risks, not only for our own safety, but for those we employ and come into contact with in the course of our business.

Who is at risk?

Psychosocial hazards can affect any person, but some may be more vulnerable, including people with specific attributes (e.g. sex, race, religion, pregnancy, gender identity, sexuality or age), those with limited work experience (e.g. young support staff) and those engaged in casual or insecure work arrangements.

The Code and Regulations apply to a wide range of individuals, including: employees, workers, contractors, self-employed individuals, trainees, apprentices, and work experience students. They also encompass visitors and clients who attend the workplace.

Who has a health and safety duty in relation to psychosocial hazards?

PCBU: A PCBU must ensure, as far as reasonably practicable, the health and safety (including psychological health) of:

• its workers while they are at work (including workers directly or indirectly engaged by the PCBU, or whose activities are influenced or directed by the PCBU);[1]
• other individuals exposed to the work or business of the PCBU (e.g. visitors and clients who attend Chambers);[2]
• where the PCBU is a self-employed person – themselves.[3]

This means we not only owe obligations to all those who may attend Chambers (for work or otherwise), we also owe obligations to ourselves to manage psychosocial hazards.

Ensuring the health and safety of ourselves and others includes, as far as reasonably practicable:

• the provision and maintenance of a work environment without risks to health and safety;
• the provision and maintenance of safe systems of work;
• the provision of adequate facilities;
• the provision of information, training, instruction or supervision; and
• that the health of workers and the conditions at the workplace are monitored.[4]

Workers: Workers must take reasonable care of their own health and safety, ensure their actions do not harm others and comply with reasonable instructions and policies issued by the PCBU.[5]

Officers of a PCBU: Officers of the PCBU, which includes the directors of a service company, must exercise due diligence to ensure that the PCBU complies with its duties. This includes acquiring knowledge of psychosocial risks, understanding the nature of operations, providing resources to minimize risks and responding to incidents and hazards effectively.[6]

An officer’s duty is immediate, positive and proactive.

Other persons: Other persons in a workplace must also take reasonable care of their own health and safety, ensure their actions do not harm others and comply with reasonable instructions issued by the PCBU.[7]

What do I have to do to comply?

PCBUs need to examine the way they design, organise and manage work, the work environment, the equipment used and workplace behaviours to identify where hazards might exist.[8]  When identifying psychosocial hazards, PCBUs must consult with workers to properly understand where those risks lie.[9]

In the context of Chambers, this may include:

• meeting with support staff and members of Chambers to identify psychosocial risks;
• setting reasonable and clear deadlines when giving work to support staff;
• providing support staff with clear position descriptions that outline their work duties;
• providing training and guidance, however informal, to support staff;
• having clear workflows and processes in place that allow support staff to manage their workload, particularly where they receive work from multiple members of Chambers;
• being conscious of our own stress and psychological health and ensuring that stress is not misdirected to others in Chambers;
• being sensitive to how we expose support staff, and each other, to traumatic or graphic material and respecting their willingness to review or be exposed to such material;
• ensuring support staff take appropriate breaks, and ensuring members of Chambers respect those breaks;
• being mindful of our corridor conversations;
• proactively disavowing bullying or harassing behaviour in Chambers.

What happens if I do not comply?

Failure to comply with the duty to manage psychosocial harm may result in significant penalties under the Work Health and Safety Act 2011 (Qld), or criminal prosecution where the failure amounts to reckless conduct.[10]

The maximum penalties for failing to comply with the duty as a PCBU range from$154,800 for individuals (or $774,000 for body corporates)[11] to $928,000 for individuals (or $4,644,000 for body corporates) where the conduct amounts to reckless conduct.[12]

Further support

Guidance on how to mitigate psychosocial hazards and foster a mentally healthy workplace can be found here – Mentally healthy workplaces toolkit | WorkSafe.qld.gov.au.

[1] Work Health and Safety Act 2011 (Qld) s 19(1).

[2] Work Health and Safety Act 2011 (Qld) s 19(2).

[3] Work Health and Safety Act 2011 (Qld) s 19(5).

[4] Work Health and Safety Act 2011 (Qld) s 19(2).

[5] Work Health and Safety Act 2011 (Qld) s 28.

[6] Work Health and Safety Act 2011 (Qld) s 27.

[7] Work Health and Safety Act 2011 (Qld) s 29.

[8] Work Health and Safety Act 2011 (Qld) s 34.

[9] Work Health and Safety Act 2011 (Qld) ss 47 and 49.

[10] Work Health and Safety Act 2011 (Qld) s 31(3).

[11] Work Health and Safety Act 2011 (Qld) s 33.

[12] Work Health and Safety Act 2011 (Qld) s 31.

Cappello v Lyons [2023] NSWCA 137 (23 June 2023)

The appellants were plaintiffs and cross-defendants in proceedings in the Equity Division of the Supreme Court against a building company. Those proceedings turned, in part, on the entitlement of the builder to recover an amount claimed under a progress claim issued to the appellants, which they had refused to pay in full.  The Court held it did have such an entitlement.

The entitlement of the builder to issue progress claims arose from cl 15 of the contract between the builder and the appellants. Clause 15.4 required any progress claim to include details of the cost of the building works carried out. Clause 15.5 required any progress claim to be accompanied by such invoices, receipts or other documents as may reasonably be expected to support the claim and evidence the cost of the building works being claimed. At no time in the proceedings in the Equity Division did the appellants assert any failure on the part of the builder to comply with cl 15. The appellants sought to introduce this as an issue in an appeal to the Court of Appeal. The Court refused to allow the new point to be argued, and the appellants’ liability to pay the amount outstanding on the progress claim was not disturbed.

The appellants’ pleading in the proceedings in the Equity Division was drafted by a solicitor. Five months before those proceedings were heard, the solicitor filed a Notice of Ceasing to Act.

The appellants commenced a proceeding against the solicitor in the District Court, claiming damages for professional negligence. The asserted negligence was failure to plead in the proceedings in the Equity Division that the builder, in issuing its progress claims, had breached cl 15 of the contract. The appellants asserted that, had those breaches been pleaded, they would not have been liable to the builder for non-payment of the builder’s final progress claim and they would have been entitled to be repaid all monies previously paid pursuant to earlier progress claims.

The Court dismissed the claim.  The appellants appealed to the Court of Appeal. One of the issues was whether the respondent solicitor could rely on a defence of advocate’s immunity.

The Court (Simpson AJA, Meagher JA and Griffiths AJA agreeing), in dismissing the appeal, provided the following concise summary of the application of advocate’s immunity to pleadings and omissions therein.

“Ground 1: “advocate’s immunity”

47. It is convenient, before coming to Mr Cappello’s submissions with respect to ground 1 (which are brief) to outline the relevant legal principles, as stated in the three principal decisions of the High Court referred to above. The ground is, in my opinion, so plainly untenable that I propose to deal with it as briefly as possible.
48. The central principle was identified in D’Orta at [1] as:

“… at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court.” (emphasis added)

49. The principle is of long standing and derives from English authority: Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198. It was adopted as stating the law in Australia by a narrow majority (Mason CJ, Wilson, Brennan and Dawson JJ, Deane, Toohey and Gaudron JJ dissenting) in Giannarelli.
50. In that case, Mason CJ said that the rationale for the immunity “must rest on considerations of public policy”: at 555. The primary public policy consideration is finality of the resolution of legal disputes. His Honour referred to:

“… the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings”.

Notwithstanding that the principle has come to be known as “advocate’s immunity”, Mason CJ made it plain that the protection it gives is afforded, not for the benefit of the advocate, but for the wider and more profound purpose of the protection of the administration of justice in promoting finality in the resolution of legal disputes: at 557. The immunity is that of the ultimate decision in legal proceedings.

51. That necessarily raises the question of the scope of the immunity, something discussed by Mason CJ in Giannarelli. His Honour observed that the public policy considerations underlying the immunity for in-court negligence had no application to liability for work done out of court which is unconnected with work done in court, and added (at 559-60):

“The problem is: where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity.”

52. His Honour then endorsed a proposition stated in a New Zealand decision (Rees v Sinclair [1974] 1 NZLR 180 at 187) that:

“… the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.”

53. These observations from Giannarelli were adopted in D’Orta, in which the High Court was invited to reconsider its decision in Giannarelli, an invitation the High Court, by majority, refused.
54. The most recent consideration of the scope of the immunity by the High Court was in Attwells, in which a majority of the Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) concluded that it does not extend to negligent advice that leads to settlement of a case by agreement between the parties – settlement by the parties not being a “decision affecting the conduct of a case in court”.
55. The majority considered that:

“the required connection is between the work in question and the manner in which the case is conducted in court.” (at [5])

and

“In short, in order to attract the immunity, advice given out of court must affect the conduct of the case in court and the resolution of the case by that court ….” (at [6])

56. At [37] their Honours held that the scope of the immunity “is confined to conduct of the advocate which contributes to a judicial determination”. At [46] their Honours said:

“Once it is appreciated that the basis of the immunity is the protection of the finality and certainty of judicial determinations, it can be more clearly understood that the ‘intimate connection’ between the advocate’s work and ‘the conduct of the case in court’ must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision. The notion of an ‘intimate connection’ between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate’s work and the client’s loss; rather, it is concerned only with work by the advocate that bears upon the judge’s determination of the case.”

57. It was no doubt these conclusions that the primary judge had in mind when she held that the pleadings in the Supreme Court proceedings bore upon Ball J’s determination of the case.
58. In his written submissions Mr Cappello acknowledged the principles stated above, and quoted from Attwells, D’Orta and Giannarelli. He then advanced a single argument against the decision of the primary judge. This was:

“Attwells is binding authority for the critical element necessary to invoke advocate’s immunity is that the work must have led to a decision (emphasis added) affecting the conduct of the case in court. In this case there was no decision by the solicitor. The solicitor did not consider clauses 15.4 and 15.5 of the building contract and the non-compliance therewith by the builder. He did not decide not to include it the pleadings. There was no evidence from the solicitor that he had considered and decided not to include it. It follows that advocate’s immunity was not available to the solicitor as a complete defence to the claim against him.”

The first thing to note about these submissions is that they are based on a premise not established in the evidence. As Mr Cappello noted, Mr Lyons did not give evidence, either by affidavit or orally. There was no evidence that he had not given consideration to cll 15.4 and 15.5 of the contract. It is simply speculation to say, as Mr Cappello does, that Mr Lyons did not make a decision not to include cl 15 in the pleadings.

More importantly, perhaps, Mr Cappello appears to misunderstand what was intended by Mason CJ in referring to “a decision affecting the conduct of the case in court”. I do not understand his Honour to be saying that, in the absence of a conscious or articulated decision by the advocate (for example to plead a possible claim or defence), the immunity does not apply. A number of cases have determined that an omission may also attract the immunity: see, for example Keefe v Marks (1989) 16 NSWLR 713; Attard v James Legal Pty Ltd [2010] NSWCA 311 at [2] (Beazley JA), [9] (Giles JA).

The relevant “decisions” are those involved in the conduct of the litigation. The pleading is the fundamental document that underlies all decisions to be made in the conduct of litigation. As the primary judge said, the pleading defines the issues for determination. They are thus “intimately connected” with the conduct of the case in court. They are also foundational to the outcome of the litigation.

It is perfectly plain that the failure by Mr Lyons to plead a breach of cl 15, whether by conscious decision or by omission to consider the consequences of non-compliance, and whatever the outcome might have been had it been pleaded, attracts the immunity discussed in Giannarelli, D’Orta and Attwells. It was “intimately connected” with conduct of the claim brought by the Cappellos, and the cross-claim brought by H&S. It no doubt led to multiple decisions in the conduct of that litigation, and therefore to the final decision by Ball J. The primary judge was correct to uphold Mr Lyons’ defence.”

A link to the case can be found here.

In Legal Services Commissioner v PRF [2023] QCAT 291 (7 August 2023), the Queensland Civil and Administrative Tribunal (Justice Brown, assisted by Mr Ross Perrett, practitioner panel member, and Dr Julian Lamont, lay panel member) adjudicated a claim of alleged wrongful conduct by a solicitor. The respondent (PRF) acted for his daughter (KLK) in domestic and family law proceedings. Her former spouse (MDK) brought an application against KLK for a domestic violence order.  Subsequently that was withdrawn, but then KLK filed an application for interim and final parenting. PRF then sent an email to some 20 recipients – being his friends and acquaintances – which attached “some spare time reading”, informing the recipients of the application for a domestic violence order filed by MDK against KLK which was withdrawn, the fiery exchange he had with the magistrate and otherwise commenting upon the proceedings. He attached to the email an affidavit by KLK filed in MDK’s application, together with a copy of his submissions prepared for the hearing in respect of which he had sought to strike out MDK’s application. The affidavit revealed sensitive personal matters in relation to MDK and the children of the marriage. The court wrote:

…

[2]  The respondent, PRF, is an Australian legal practitioner. He was admitted as a solicitor in 2001. At all relevant times he held an unrestricted principal practising certificate and was the legal practitioner director of a law firm which ceased trading on 30 June 2022. He had been in private practice for 12 years. In addition to private practice, he has held several roles in various public service departments or agencies including in legal and quasi-legal roles. He has no previous disciplinary history.

[3]  On 27 May 2022, the Legal Services Commissioner (“LSC”) filed a disciplinary application in accordance with the Legal Profession Act 2007 (Qld) (“LPA”) charging PRF with failing to maintain reasonable standards of competence and diligence in the conduct of a matter relating to an application for a protection order against his daughter, who was also his client. The particulars of the charge include that on 1 April 2020, the respondent sent an email to some 20 recipients (identified as colleagues and friends) after an application for a domestic violence order against his daughter was withdrawn. That email disclosed the identity of a party to a proceeding and a child concerned in a proceeding contrary to the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”). The email also contravened s 121(1) of the Family Law Act 1975 (Cth) (“FLA”) by publishing an account of proceedings or part of proceedings that identified a party to the proceedings. The LSC contends that the respondent’s conduct constitutes unsatisfactory professional conduct and/or professional misconduct.

…

[25]  The two matters which remained the subject of dispute at the hearing, and which must be determined by this Tribunal, are:

(a) whether the respondent’s conduct constitutes unsatisfactory professional conduct or professional misconduct; and

(b) what is the appropriate sanction to be imposed.

[26]  The Tribunal adopts the two-stage process identified by the Court of Appeal in Attorney-General v Shand in considering the first matter by reference to the facts at the time of the conduct giving rise to the charge and the second matter taking into account subsequent conduct of PRF up until the hearing, particularly as to rehabilitation and reformation of character.

Characterisation of the conduct

[27]  The LPA defines “unsatisfactory professional conduct” or “professional misconduct” respectively in ss 418 and 419.

[28]  Section 418 of the LPA provides:

418  Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

[29]  Section 419 of the LPA provides:

419 Meaning of professional misconduct

(1) Professional misconduct includes—

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

[30]  Pursuant to s 420(1) of the LPA, conduct consisting of a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.

[31]  The LSC contends that the conduct is more properly characterised as professional misconduct than unsatisfactory professional conduct, particularly given that disclosure made contrary to the terms of s 159 of the DFVPA carries a maximum penalty of two years’ imprisonment or 100 penalty units. PRF has not, however, been charged under the DFVPA. While the maximum penalty demonstrates that Parliament considers that a disclosure that would contravene the DFVPA is of such seriousness that it warrants such a maximum penalty, whether and what penalty would be imposed for a disclosure such as that made by PRF would depend on the Magistrate’s assessment of the breach and is a matter of speculation.

[32]  What the penalty attaching to the disclosure does demonstrate is that a legal practitioner acting in domestic and family violence proceedings should be aware of the serious nature of conduct and proceedings and, acting reasonably and diligently, review the DFVPA before making any disclosure. That is also the case where the practitioner makes any disclosure of a proceeding under the FLA where the practitioner is aware his client is involved in such proceedings.

[33]  In submitting that the Tribunal should find that the respondent engaged in professional misconduct, the LSC contends the conduct of PRF is more serious than the conduct in the cases of Legal Services Commissioner v Orchard (“Orchard”)3 and Legal Services Commissioner v Cooper (“Cooper”),4 where both cases resulted in a finding of unsatisfactory professional conduct. The Tribunal considers that PRF’s conduct is in some respects as serious as that involved in those cases but not more serious so as to warrant a finding of professional misconduct.

[34]  In Orchard, the Judicial Member of the Tribunal in the original decision described the document sent by the solicitor concerned as involving:5

risqué descriptions of their sexual encounters, and of the daughters allegedly provocative conduct … much of it seems directed against the mother and to be an attempt to embarrass her and to induce her to withdraw her complaint.

And further:

… it is a scandalous document which goes considerably beyond the limits of a proper defence. It contains highly embarrassing and gratuitously graphic descriptions of what the teacher alleges to have been the details of his past relationship with her. It contains a clear threat to defame her by publication of such material to outsiders, which is of particular concern.

[35]  The Judicial Member considered the conduct to be so serious that “… there appeared, in his view, to be a prima facie case of retaliation against or intimidating a witness under s 119B(1) of the Criminal Code Act 1899”.6 He said:7

“he evidence seems capable of showing that the teacher made a threat to cause detriment to a witness, or a member of the family of a witness, for the purpose of retaliation or intimidation, because of something unlawfully done by the witness.

[36]  The LSC appealed a finding of unsatisfactory professional conduct and sought a finding of professional misconduct. That was rejected upon appeal. The Tribunal referred to other cases including Cooper and observed that:8

In both LSC v Winning and LSC v Cooper this Tribunal considered conduct which involved the use of offensive or insulting language in communications in connection with the practice of law. In Winning the practitioner on several occasions used grossly offensive and obscene language in conversations with other practitioners. In Cooper the lawyer wrote two letters to another solicitor on behalf of his client which were insulting, and personally offensive. In both instances a finding of unsatisfactory professional conduct (where relevant to the charges in this matter), rather than professional misconduct, was made.

A closer parallel can be found in LSC v O’Connor in which the practitioner had written a letter on behalf of his client (also a lawyer) to a former client who had made a complaint to the Legal Services Commissioner, and demanded an apology and withdrawal of the complaint upon the threat of proceedings for defamation, with substantial compensation. The Tribunal held that sending the letter demonstrated a lack of judgement because the practitioner ought to have been aware, and advised his client of, the relevant legislation and the statutory duty of the solicitor who was the subject of the complaint to cooperate and assist reasonably with the investigation process; and, made a finding of unsatisfactory professional conduct.

Mr Orchard made much the same kind of mistake. He sent off a document produced by his client without reflecting fully upon its content, or the consequences. Rule 28 of the Solicitors Rule provides that a solicitor must not, in any communication with another person make any statement that is calculated to mislead or intimidate the other person, or make any statement that is abusive, offensive or insulting. (footnotes omitted)

[37]  While the email in the present case was sent to 20 recipients, the context of the conduct was not, as it was in Orchard and to a lesser extent in Cooper, the making of serious and in some respects scandalous and offensive allegations to intimidate and extract a particular outcome from the recipient in relation to the proceedings involved. In this case, while the respondent signed the email off in his professional capacity, he was writing to friends and colleagues after the application under the DFVPA had been withdrawn. While PRF describes his conduct in his affidavit as “reaching out”, its content is more in the nature of his seeking to vent in respect of what he considered to be an injustice and update the recipients as to what had been going on in his life. While the LSC questions how the email could be said to be reaching out, it was written while the respondent was self-isolating as a result of COVID-19 and after the application under the DFVPA had been withdrawn, consistent with the email being designed to make contact with others. The conduct in this case was not, on the basis of the evidence before the Tribunal, calculated to achieve any outcome or intimidate MDK into any sort of agreement.

[38]  Although PRF was not purporting to act on behalf of a client in sending the email, the respondent, like the respondent in Orchard, sent the email without reflecting fully upon its content or its consequences, particularly under the relevant legislation. Wrongful disclosure of domestic violence proceedings can have serious consequences, particularly for those involved. While the disclosure was a serious matter and could result in a criminal charge under the DFVPA, the conduct was not more serious than that in Orchard, particularly having regard to the Judicial Member’s characterisation of the content of the communication as prima facie constituting a criminal offence by the solicitor’s client.

[39]  It was however a dereliction of professional duty in relaying the contents of the email to friends and colleagues in the context of highly sensitive and personal matters. In particular, attaching the affidavit material and submissions as to his daughter and grandchildren’s circumstances and submissions made in relation to MDK was on any view improper. The respondent gave no consideration to the effect of that conduct upon MDK or his grandchildren. The email contained personal information about MDK and his partner in the context of a family law dispute with considerable acrimony which could only serve to inflame the situation further in circumstances where MDK could not defend himself.

[40]  The respondent’s legal representatives submit that in the particular circumstances of the present case, the conduct is properly characterised as unsatisfactory professional conduct not professional misconduct.

[41]  PRF has given evidence as to his personal circumstances at the time, including an oppressive workload, the stress of relocating from Canberra to Brisbane, and being in self-isolation and isolated from his family. He describes himself as having had poor mental health, in the sense of feeling depressed and worried for his daughter and angry at MDK’s behaviour. Those matters do not excuse his behaviour but demonstrate that his decision-making was affected by a number of matters at the time.

[42]  PRF’s professional judgment is best characterised as being clouded by emotion, external stressors and lack of independence, in failing to consider the effect of such disclosure on MDK as well as his own daughter and grandchildren and without ensuring that such disclosure could be made within the terms of the applicable legislation. In failing to consider whether such disclosure was appropriate and legally permissible, the conduct in question undoubtedly falls short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent practitioner.

[43]  The disclosure in contravention of the DFVPA is the most serious aspect of PRF’s behaviour. While there was also disclosure in breach of the FLA, the LSC accepted it was in the nature of a technical breach.

[44]  There was no challenge by the LSC to PRF’s evidence that the breach was inadvertent, in circumstances where he did not know that his conduct would amount to a breach of legislation. The fact that the proceedings were connected with domestic violence and family law proceedings, which are obviously areas of law requiring acknowledged protection for those involved and for confidentiality to be maintained, supports the fact that PRF should have known or made himself familiar with the provisions of the DFVPA and FLA prior to sending the email, even though the application under the DFVPA had been withdrawn. The disclosure under the DFVPA was made after the application was withdrawn and the proceeding was no longer on foot.

[45]  While PRF’s conduct was unprofessional in circumstances where he should have been aware of the prohibitions on such disclosure under the relevant legislation, it was not in the circumstances described above conduct of a level that violated or fell short to a substantial degree the standard of professional conduct observed or approved by members of the profession of good repute and competency.9

Appropriate sanction

[46]  The primary role of the proceedings is protective in nature, not punitive.10 The Tribunal should primarily have regard to the protection of the public and maintenance of proper professional standards.11 Personal and general deterrence are relevant to the protection of the public.12

[47]  In New South Wales Bar Association v Cummins, the NSW Court of Appeal recognised four interrelated interests of the client, fellow practitioners, the judiciary and the public which may be affected by a legal practitioner’s conduct and which reflect the requirements of the highest standard of integrity of the legal profession.13

[48]  The LSC submits the appropriate sanction in relation to the respondent’s conduct is:

(a)  a public reprimand;

(b)  a pecuniary penalty of $1,500; and

(c)  that the respondent undertake a course in relation to domestic violence.

[49]  The respondent does not contest the sanctions sought. Although the respondent originally challenged the undertaking of a course in relation to domestic violence, upon clarification that the course the LSC proposed is one appropriate for legal professionals, which is completed online and educative of the nature of domestic violence proceedings including the need for confidentiality, his legal representatives informed the Tribunal that he no longer contested an order that he undertake such a course and at the time of the hearing had already enrolled in the course. Notwithstanding the respondent is not presently engaged in private practice, given the nature of the charge, such a course would be appropriate for PRF.

[50]  The appropriate sanction is a matter for the Tribunal. The Tribunal has broad powers to make orders contained in s 456(2) of the LPA which it considers appropriate having found that a practitioner has engaged in unsatisfactory professional conduct.

[51]  In considering the appropriate sanction to be imposed, in addition to the nature of the conduct found to be established and the circumstances in which it occurred discussed above, the Tribunal also has regard to the following matters:

(a)  the respondent has not been previously disciplined by the Tribunal and has not been the subject of subsequent complaints;

(b)  the conduct of the respondent had a considerable impact upon MDK, who provided an affidavit deposing to the fact that PRF’s conduct has caused him considerable distress and anxiety;

(c)  while there was a gap of some months, the respondent took steps to address his conduct and MDK’s requests in relation to his conduct by:

(i)  sending a follow-up email to the 20 recipients of the original email, stating he should not have sent the email and that it contained private and confidential information, albeit that he sought to raise circumstances to place his conduct in a context to soften his culpability; and

(ii)  sending an apology email to MDK, albeit one year after the events in question.14  While the apology could have been more expansive, the Tribunal accepts it was genuine.

(d)  relevant to the prospect of the conduct reoccurring is the fact that it occurred in circumstances where the respondent was subject to personal and work stressors. While the LSC contends that the respondent did not appear to seek any professional treatment or support for the difficulties he was experiencing, which could increase the risk of such conduct occurring again when stressed, the need for professional assistance, although it may have been helpful, is not established. This is particularly so given there were a number of factors converging at the one time, namely: the matter involved his daughter who he was worried about; the email refers to him having worked 22 extra hours on top of his normal workload in circumstances where his workload was excessive at the time; PRF was transitioning himself and his team to working from home; he relocated from Canberra to Brisbane; and he had stressors in his own personal life apart from his daughter which contributed to his social isolation. PRF’s conduct since that time is consistent with him having accepted that he breached his obligations once he had the benefit of legal advice, where he has demonstrated remorse. He is no longer in private practice. In the circumstances, the Tribunal considers that the respondent’s conduct is not indicative of an ongoing vulnerability and there would appear to be a relatively low risk of that being the case;

(e)  the respondent’s judgment and conduct was coloured by his relationship with his daughter, who he had raised substantially on his own and who he wished to defend and protect;

(f)  the respondent has expressed remorse and shame for his conduct and that these proceedings have had an impact upon him; and

(g)  the respondent has stated he has reflected on his behaviour and practice as a legal practitioner as a result of this proceeding and realises and understands that the email was entirely inappropriate, indicating some insight into his conduct.

[52]  In the present case, the need for the protection of the community is relatively low. The Tribunal accepts that the respondent did not breach the legislation deliberately and with knowledge he was acting in contravention of the legislation. He did have some personal and work circumstances impacting on his decision-making and was self- isolating. He has since taken some steps to redress his conduct through his emails to the recipients and MDK and has been co-operative with the LSC throughout. Given his previous history and the circumstances of the present case, the risk of the conduct reoccurring is low.

[53]  While the LSC made some criticisms of the respondent’s email to the recipients as to his improper disclosure and the Tribunal has carefully considered the submissions made by the LSC, it considers he sent the email genuinely seeking to redress his conduct.

[54]  Given the penalties imposed in Orchard and Cooper, an order that the respondent pay a pecuniary penalty is appropriate.

[55]  The question of a public reprimand raised issues, given the fact that it could be in breach of the Order of this Tribunal made on 30 September 2022. The Tribunal considered whether to vary that order to permit the publication of the respondent’s identity. However, given the effectiveness of the public reprimand was of questionable utility in the absence of reasons, the Tribunal determined that a public reprimand was appropriate to serve as a general deterrent to others albeit using pseudonyms should be used to protect the identities of those the subject of the relevant proceedings. Given the connection of PRF to those individuals, it was considered that naming him would risk disclosing their identity in connection with the proceedings and in those circumstances the respondent’s name should not be used. A public reprimand still serves to denounce the conduct in which PRF was involved and deter others.

[56]  While the Tribunal originally questioned the undertaking of domestic violence training as an appropriate sanction when PRF was not a perpetrator of domestic violence, the course identified by the LSC is one which it considers appropriate for PRF to undertake, so he appreciates the importance of maintaining confidentiality of the persons protected by the DFVPA and FLA and checking legislation for such provisions in the future.

[57]  Pursuant to s 462 of the LPA, the Tribunal must make an order for costs unless it is satisfied that exceptional circumstances exist. It is accepted by the respondent that it is appropriate that a costs order be made in the LSC’s favour.

[58]  In the circumstances the appropriate sanctions that should be imposed upon the respondent for his conduct are:

Orders

[59]  The orders of the Tribunal are:

(i)  the respondent’s conduct the subject of charge 1 amounts to unsatisfactory professional conduct;

(ii)  the respondent is publicly reprimanded;

(iii)  the respondent pay a pecuniary penalty of $1,500; and

(iv)  the respondent undertake the domestic and family violence education course nominated by the LSC at hearing, or if that course is discontinued an equivalent course to be nominated by the LSC, and upon completion provide evidence of completion to the LSC; and

(v)  the respondent pay the LSC’s costs.

(emphasis added)

3 [2012] QCAT 583 .

4 [2011] QCAT 209 .

5 [2012] QCAT 583 at [7] and [8] .

6 [2012] QCAT 583 at [9] .

7 [2012] QCAT 583 at [9] .

8 [2012] QCAT 583 at [15] –[17] .

9 Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 at 507 .

10 Legal Services Commissioner v Madden (No 2) [2008] QCA 301 at [122] .

11 Ibid.

12 Attorney-General v Bax (1999) 2 Qd R 9 at 22 .

13 52 NSWLR 279 at [20] .

14 While MDK questions the level of apology, and the reference to the respondent self-isolating, the respondent has sworn to not knowing that he was contravening the relevant legislation and while the confinement direction was not issued until the day after the email was sent, that does not belie the fact the respondent was self-isolating.

The full decision can be found here:  https://archive.sclqld.org.au/qjudgment/2023/QCAT23-291.pdf

In a recent decision of the Federal Court of Australia in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 (30 August 2023), damages were awarded jointly and severally as against a Judge of the Federal Circuit Court of Australia, the Commonwealth and the State of Queensland for false imprisonment arising from the plaintiff having being found during a hearing to be in contempt, and then ordered  imprisoned. Critical in the outcome were findings that an order of an inferior court judge infected by manifest jurisdictional error were void ab initio not only upon being set aside, and that judicial immunity is not afforded such judge in such circumstances. Wigney J wrote:

1    The applicant in this proceeding was the victim of a gross miscarriage of justice. He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing. He spent seven days in prison before being released. The order that resulted in his incarceration was subsequently set aside. The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident.

2    The applicant will be referred to as Mr Stradford in these reasons for judgment. That is not his real name. It is a pseudonym that was used in the proceedings that resulted in his imprisonment. It is appropriate to continue to use that pseudonym.

3    The person primarily responsible for Mr Stradford’s imprisonment was the first respondent, a judge of the then Federal Circuit Court of Australia (the Judge). Mr Stradford and his former wife came to appear before the Judge in a matrimonial cause pursuant to the Family Law Act 1975 (Cth). The Judge believed that Mr Stradford had not disclosed his true financial position to his former wife and ordered him to disclose certain documents. When the matter came back before the Judge on a later occasion, the Judge declared that Mr Stradford had not complied with those orders and was in contempt of court. He ordered that Mr Stradford be imprisoned for twelve months and issued a warrant to give effect to that order.

4    Private security guards contracted by the second respondent, the Commonwealth of Australia, detained Mr Stradford pursuant to the warrant and took him to a holding cell in the court complex. A short time later, Queensland Police officers, also acting pursuant to the warrant, took custody of Mr Stradford. He spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland. He spent another two difficult days in that facility before he was released on bail pending an appeal.

5    There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt. He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question. He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief. He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness. He effectively pre-judged the outcome. Imprisonment was a fait accompli.

6    It perhaps came as no surprise, then, that on 15 February 2019, the Full Court of the Family Court of Australia (as it then was) (FamCA Full Court) set aside both the contempt declaration and the imprisonment order made by the Judge. It concluded that “to permit the declaration and order for imprisonment to stand would be an affront to justice” and that what had occurred to Mr Stradford constituted a “gross miscarriage of justice”: Stradford v Stradford (2019) 59 FamLR 194; [2019] FamCAFC 25 at [9] and [73].

7    Mr Stradford’s detention and the deprivations and indignities that he had to endure while imprisoned exacted a significant toll on him. There was no dispute that he continues to suffer from post-traumatic stress disorder and a major depressive disorder as a result of the incident.

8    Mr Stradford commenced this proceeding alleging that the Judge had committed the torts of false imprisonment and collateral abuse of process. He also alleged that the Commonwealth and Queensland were vicariously liable for the actions of their officers in falsely imprisoning him. He claimed damages for deprivation of liberty, personal injury and loss of earning capacity. The Judge, the Commonwealth and Queensland all denied liability.

9    The question whether the Judge, the Commonwealth and Queensland are liable as alleged by Mr Stradford raises a number of issues, some of which involve complex and difficult questions of fact and law.

…

19    The Circuit Court had jurisdiction in relation to the matter because it had jurisdiction to determine “matrimonial causes” of the kind referred to in the Family Law Act (subject to two presently irrelevant exceptions): s 39(1A) of the Family Law Act; s 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). The matter between Mr Stradford and his then wife was undoubtedly a matrimonial cause.

…

83    Mr Stradford contended that the Judge lacked power to make the imprisonment order in the circumstances because he did not comply with the provisions of Pts XIIIA and XIIIB of the Family Law Act. The requirements of Pts XIIIA and XIIIB of the Family Law Act are discussed in general terms in Stradford at [13]-[15], [18] and [67]-[70]. There could be little doubt that the Judge had no regard whatsoever to the provisions in those Parts of the Family Law Act. He was either entirely ignorant of the existence of those provisions or chose to completely ignore them.

84    Part XIIIA sets out a regime for the imposition of sanctions in respect of the contravention of orders under the Family Law Act, which included orders made under the Family Law Rules 2004 (Cth) (FamL Rules) and orders made by the Circuit Court under the related FCC Rules: s 112AA and s 4(3)(e) and (f) of the Family Law Act. While it is somewhat unclear, the relevant disclosure orders made by the Judge must have been made under either the FamL Rules (see rr 1.10(1) and 13.04) or the FCC Rules (see rr 14.04 and 24.03). Either way, the order must be taken to be an order made under the Family Law Act and therefore subject to the provisions in Pt XIIIA.

85    Provisions in Pt XIIIA require that, before a court imposes a sanction on a person for contravening an order, the court must find: first, that the person intentionally failed to comply with the order, or made no reasonable attempt to comply with the order (s 112AB(1)(a) of the Family Law Act); and second, the contravention occurred without reasonable excuse: s 112AD(1) of the Family Law Act. The making of findings in respect of those matters is in effect a mandatory precondition to the imposition of sanctions for non-compliance of orders pursuant to Pt XIIIA of the Family Law Act. The Judge made no such findings.

86    Perhaps more significantly, s 112AD(2) of the Family Law Act specified the sanctions that a court was permitted to impose for contravening an order. Those sanctions included imprisonment. However, s 112AE(2) provided that a court was not permitted to impose a sentence of imprisonment for contravening an order unless the court was satisfied that “in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2)”. It is abundantly clear that the Judge did not turn his mind to that issue. Indeed, as the FamCA Full Court effectively found, the Judge pre-judged imprisonment as the punishment before his Honour even knew the particulars of the contravention or any matters in mitigation: Stradford at [21].

87    Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court” (emphasis added). Plainly the contempt for which the Judge imprisoned Mr Stradford allegedly involved a contravention of an order under the Family Law Act. It follows that, for s 112AP to apply, the Judge was required to find that the contravention involved a “flagrant challenge to the authority of the court”. His Honour made no such finding. And as the FamCA Full Court found, it is “difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Pt XIIIA of the Act and not Pt XIIIB”: Stradford at [68].

88    The Judge did not dispute that he did not follow or comply with the requirements of either Pt XIIIA or s 112AP of the Act. Nor did the Commonwealth nor Queensland. The Judge and the Commonwealth submitted, however, that the failure to follow or comply with those requirements did not amount to an error because the Judge was empowered to deal with Mr Stradford for contempt pursuant to s 17 of the FCC Act, which does not prescribe or mandate any of the requirements or limitations found in Pt XIIIA and s 112AP of the Family Law Act.

89    Section 17 of the FCC Act provided as follows:

(1)     The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

(2)     Subsection (1) has effect subject to any other Act.

(3)     The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.

Note:    See also section 112AP of the Family Law Act 1975, which deals with family law or child support proceedings.

90    Section 35 of the Family Law Act was in relevantly similar terms to s 17(1) of the FCC Act.

…

THE LIABILITY OF THE JUDGE FOR FALSE IMPRISONMENT

171    As has already been noted, there could obviously be no dispute that Mr Stradford was imprisoned. There was also no dispute that the Judge’s conduct in making the imprisonment order and issuing the warrant was the direct cause of Mr Stradford’s imprisonment. Mr Stradford was imprisoned from the date that the Judge made the imprisonment order and issued the warrant (6 December 2018) until the date that the Judge stayed the imprisonment order and directed that Mr Stradford be released (12 December 2018), a total of seven days.

172    The critical issue is whether there was lawful justification for that imprisonment.

Lawful justification

173    Both the Judge and the Commonwealth contended that there was lawful justification for Mr Stradford’s detention. They obviously did not dispute that the FamCA Full Court in Stradford set aside both the declaration and order of the Judge pursuant to which he had been imprisoned. They also conceded that the declaration and order were invalid and vitiated by jurisdictional error. That concession was properly made.

174    There could be little doubt that the Judge had the jurisdiction to entertain the matter between Mr and Mrs Stradford, and had the power to deal with any alleged contempt by Mr Stradford in the context of that litigation. In making the imprisonment order, however, the Judge acted outside or in excess of his jurisdiction by, among other things: making the imprisonment order and issuing the warrant without first finding that Mr Stradford was in contempt; failing to make findings that were necessary before the sanction of imprisonment could be imposed pursuant to the provisions in Pt XIIIA and Pt XIIIB of the Family Law Act; failing to comply with the procedure mandated by the FCC Rules for dealing with allegations of contempt; and denying procedural fairness to Mr Stradford in a manner described by the FamCA Full Court in Stradford as amounting to a “gross miscarriage of justice” (at [73]). Those errors unquestionably constituted jurisdictional errors.

175    The thrust of the Judge’s and the Commonwealth’s contention that the Judge’s imprisonment order and warrant nonetheless provided lawful justification for the imprisonment of Mr Stradford was that the order and warrant were valid until set aside by the FamCA Full Court. They submitted that the source of the Circuit Court’s power to punish for contempt carried with it the power to make orders which were valid until set aside. The Constitution was said to be the source of the Circuit Court’s power to punish for contempt, because the power to punish for contempt was said to be a feature of courts established under Ch III of the Constitution and the Circuit Court was a Ch III court. They also appeared to rely on the fact that s 17 of the FCC Act provided that the Circuit Court’s powers to punish for contempt were the same as the powers that the High Court has to punish for contempt. It followed, in their submission, that when the Circuit Court exercises its jurisdiction under s 17, it exercises the jurisdiction of a superior court, or exercises its jurisdiction in effect as a superior court, or in the capacity of a superior court. It followed, so the Judge and the Commonwealth submitted, that contempt orders made by the Circuit Court are valid until set aside, which is the position that would apply in the case of a superior court.

176    The starting point in resolving this issue is to consider whether orders made by an inferior court generally are valid until set aside. Consideration can then be given to whether contempt orders made by an inferior court, or the Circuit Court specifically, fall into a different category.

Are orders made by an inferior court valid until set aside?

177    The first question, shortly stated, is whether, as a general proposition, orders made by an inferior court are valid until set aside, even if they are infected by jurisdictional error. The short answer to that question is “no”.

178    There is no doubt that orders made by a superior court are valid until set aside: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [38]. The position is, however, different in the case of an inferior court, like the Circuit Court. As Gageler J explained in Kable (at [56]):

There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order “must always remain an outstanding question” unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction.

(Footnotes omitted)

179    Similarly, in Director of Public Prosecutions (NSW) v Kmetyk (2018) 85 MVR 25; [2018] NSWCA 156, Leeming JA (with whom Meagher JA and Sackville AJA agreed) held that orders made by the District Court of New South Wales were vitiated by jurisdictional error and, because the District Court was an inferior court, those orders were “nullities” (at [43]). Justice Leeming cited Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 in support of that conclusion.

180    It may be accepted that there may be issues surrounding the use of the words “nullity”, “void” and “voidable” in this context: cf Kable at [21]-[22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). Be that as it may, the issue, in the present context, is whether the Judge’s imprisonment order lacked legal force such as to provide a lawful basis for Mr Stradford’s imprisonment. The better view is that, whatever issues may arise in respect of the use of words like “nullity”, “void” and “voidable”, an order made by an inferior court which is infected by jurisdictional error has no legal force or effect from the outset.

181    In Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2, the High Court considered, among other things, the legal effect of an order made by the Land Court of Queensland, an inferior court. That order had been set aside on the basis that it was affected or infected by apprehended bias and a denial of procedural fairness on the part of the court. The plurality (Kiefel CJ, Bell, Gageler and Keane JJ) said as follows as to whether the order only lacked legal force when it was set aside (at [48]):

The circumstance that the Land Court has been established as an inferior court, as distinct from a superior court, means that failure to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force. That is so whether or not the judicial order is set aside.

(Footnotes omitted)

182    The Judge and the Commonwealth relied on the following passage from the judgment of McHugh JA (with whom Hope JA agreed) in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357:

If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.

183    That passage from Mayas was subsequently cited by McHugh J in Pelechowski in support of the proposition that “[a] long line of cases establishes that an order made by an inferior court, such as the District Court, will be null and void if that court did not have jurisdiction to make the order” (emphasis added). The passage from Mayas upon which the Judge and the Commonwealth rely has been understood and applied as drawing a distinction between cases where the order made by the inferior court was made within jurisdiction, and those where the error was infected by jurisdictional error: see, for example, Ho v Loneragan [2013] WASCA 20 at [32]-[35]; Firth v Director of Public Prosecutions (NSW) [2018] NSWCA 78 at [19]-[20]. As noted earlier, in Kmetyk, Leeming JA cited Pelechowski (and therefore, in effect, Mayas) in support of the conclusion that orders made by an inferior court which were vitiated by jurisdictional error were nullities. It follows that the Judge’s and the Commonwealth’s reliance on Mayas was misplaced.

184    The Circuit Court was an inferior court. The Judge’s imprisonment order was infected by jurisdictional errors. Subject to the contention advanced by the Judge and the Commonwealth that the imprisonment order should be approached differently because it was made on the basis of the Circuit Court’s contempt powers, the order lacked legal effect from the outset and provided no lawful justification for Mr Stradford’s imprisonment.

Was the imprisonment order nevertheless valid until it was set aside?

185    The Judge and the Commonwealth submitted that the imprisonment order was valid until set aside, despite the fact that the Circuit Court was an inferior court. They did not go so far as to say that all orders made by the Circuit Court are valid until set aside. Apart from their reliance on Mayas, they did not appear to directly challenge the general proposition, supported by the authorities referred to earlier, that orders made by inferior courts which are infected by jurisdictional error lack legal force whether or not they are set aside. Rather, they submitted that the imprisonment order was of a different nature because it was made in exercise of the Circuit Court’s contempt powers. That was said to be so for two reasons.

186    First, they submitted that the Circuit Court had the power to punish for contempt by virtue of it having been invested with the judicial power of the Commonwealth. They submitted, relying on Re Colina, that the power to punish for contempt was an attribute of the judicial power of the Commonwealth which was vested in the Circuit Court as a court under Ch III of the Constitution. That amounted, in effect, to a submission that the Circuit Court had a constitutionally implied power to punish for contempt. That implied power, so it was submitted, was not subject to the provisions of Pt XIIIA and Pt XIIIB of the Family Law Act. Moreover, it followed that orders made pursuant to that power are by their nature valid until set aside.

187    Second, they appeared to rely on the fact that s 17 of the FCC Act provided that the Circuit Court’s power to punish for contempt was the “same” as that possessed by the High Court. Orders made by the High Court punishing for contempt are valid until set aside. It followed, in the Judge’s and the Commonwealth’s submission, that orders made by the Circuit Court pursuant to s 17 of the FCC Act possess the same quality. Orders made pursuant to s 17 of the FCC Act were said, in that regard, to have “superior court legal effect”.

188    I am not persuaded that there is any merit in either of the arguments advanced by the Judge and the Commonwealth in support of the proposition that orders made by the Circuit Court in the exercise of its contempt powers are valid until set aside.

189    The argument based on Re Colina relied entirely on the following short passage in the judgment of Gleeson CJ and Gummow J (at [16]):

Section 24 of the Judiciary Act and s 35 of the Family Law Act are not expressed to confer federal jurisdiction in respect of a particular species of “matter”. They set out particular powers of this Court and the Family Court and should read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in those Courts by s 71 of the Constitution. The acts constituting the alleged contempts by Mr Tomey are not offences against any law of the Commonwealth. That which renders such acts (if proved) liable to punishment has its source in Ch III of the Constitution. The power to deal summarily with contempts is, to use Isaacs J’s phrase “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.

(Footnotes omitted)

190    The Judge and the Commonwealth highlighted the statement that the powers “set out” in ss 24 and 35 of the Judiciary Act 1903 (Cth) and the Family Law Act should be “read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in” the High Court and Family Court. As can be seen, however, that statement concerns the attributes of the High Court and the Family Court as repositories of the judicial power of the Commonwealth, not the attributes of all courts that may be the repositories of federal jurisdiction. Moreover, the statement must be taken as being limited to superior courts that are repositories of federal jurisdiction. That is apparent from that part of the reasoning that refers to the inherent power of courts to deal summarily with contempts. That reasoning can only apply to superior courts because inferior courts like the Circuit Court have no inherent powers: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 at [26]. The Chief Justice and Gummow J emphasised that the Family Court was a superior court of record (see [15]).

191    It should also be noted that, while Hayne J agreed with the reasons of Gleeson CJ and Gummow J, McHugh J (with whom Kirby J relevantly agreed) did not (see [45]-[50] and [80]-[81]) and Callinan J did not squarely deal with the issue addressed in the reasoning upon which the Judge and the Commonwealth rely.

192    In any event, even if the passage from Re Colina relied on by the Judge and the Commonwealth provides some support for the proposition that the Circuit Court’s power to deal with contempts as conferred by s 17 of the FCC Act is declaratory of an inherent power it has as a repository of federal jurisdiction, it does not follow that orders made by the Circuit Court in the exercise of its contempt powers are somehow imbued with the characteristics of orders made by superior courts. Nor does it follow that orders made by the Circuit Court in the exercise of its contempt powers are valid until set aside. The passage from the judgment of Gleeson CJ and Gummow J says nothing at all about the nature or characteristics of orders made by Ch III courts in the exercise of contempt powers, or the effect or enforceability of such orders. Still less does that passage say anything about the effect or enforceability of orders made by Ch III courts which are inferior courts, like the Circuit Court. The Chief Justice and Gummow J said nothing concerning the contempt powers of inferior courts.

193    Another answer to the arguments advanced by the Judge and the Commonwealth based on Re Colina is that, when he made the imprisonment order, the Judge was not exercising the Circuit Court’s powers pursuant to s 17(1) of the FCC Act. Nor was he exercising any inherent or implied power of which s 17 of the FCC Act was perhaps declaratory. Rather, as discussed earlier in these reasons in the context of the errors made by the Judge, while he may not have known or appreciated it, his Honour was exercising, or at least purporting to exercise, the court’s powers under either Pt XIIIA or Pt XIIIB of the Family Law Act. Those provisions constituted a code for dealing with contempts when the Circuit Court was exercising jurisdiction under the Family Law Act. The operation of those prescriptive and exhaustive provisions effectively excluded or limited any other general powers the Circuit Court may have had to deal with contempts, in particular contempt of the sort in issue in this case.

194    That also provides an answer to the argument advanced by the Judge and the Commonwealth to the effect that, because the effect of s 17 of the FCC Act was to confer on the Circuit Court the High Court’s powers to deal with contempts, the effect was that orders made in the exercise of the power in s 17 had a “superior court legal effect”. In any event, even if the Judge was exercising the Circuit Court’s power under s 17 of the FCC Act, the fact that the Circuit Court had the same power as the High Court in respect of contempts does not mean that orders made by the Circuit Court in exercise of that power are of the same nature, or have the same effect or enforceability, as orders made by a superior court. Section 17 of the FCC Act says nothing about whether orders made by the Circuit Court in the exercise of its contempt powers under that provision are valid until set aside.

195    It follows that I am not persuaded that orders made by the Circuit Court pursuant to its power to punish for contempt, particularly when those orders are made in the context of the exercise of jurisdiction under the Family Law Act, have “superior court legal effect” or are otherwise valid until set aside. The better view is that, like other orders made by an inferior court, orders made by a judge of the Circuit Court in purported exercise of the power to punish for contempt are of no legal effect if they are infected by jurisdictional error. It is not the case that such orders are, or remain, valid until set aside. It follows that the order made by the Judge to imprison Mr Stradford, infected as it was by jurisdictional error, was of no legal effect. It provided no lawful justification for Mr Stradford’s imprisonment.

Conclusion concerning the elements of the tort of false imprisonment

196    Mr Stradford was imprisoned for seven days as the direct result of the imprisonment order made, and the warrant issued, by the Judge.

197    For the reasons that have been given, there was no lawful justification for Mr Stradford’s imprisonment. The imprisonment order and warrant were invalid and of no legal effect. The contention advanced by the Judge and the Commonwealth that the order and warrant remained valid until set aside is unmeritorious and rejected. It follows that the elements of the tort of false imprisonment have been made out.

198    The only remaining issue concerning the Judge’s liability for the tort of false imprisonment is whether the Judge was immune from civil suit in respect of Mr Stradford’s imprisonment by virtue of his status as a Circuit Court judge.

JUDICIAL IMMUNITY

199    The Judge contended that Mr Stradford’s case against him must fail because he is entitled to the protection of judicial immunity. He was, he submitted, entitled to the protection of judicial immunity for two reasons.

200    The first reason was that, even if he was only entitled to the judicial immunity available to inferior court judges, the errors made by him were errors within jurisdiction and the judicial immunity available to inferior court judges is not lost as a result of such errors.

201    The second reason was that, in his submission, he was in any event entitled to the judicial immunity available to superior court judges. That immunity is only lost in circumstances where the judge acted in bad faith or knowingly without jurisdiction. No such allegation is made against him. The Judge submitted that the Court should find that there is either no distinction between the judicial immunity available to inferior and superior court judges, or if there is, that he was in any event effectively acting as a superior court judge, or was effectively exercising the powers of a superior court judge, when imprisoning Mr Stradford for contempt.

202    Mr Stradford contended that the Circuit Court was an inferior court and the Judge was an inferior court judge. There is, Mr Stradford submitted, a long line of cases that establish that an inferior court judge loses the protection of judicial immunity if the judge acts outside or in excess of jurisdiction. In Mr Stradford’s submission, the Judge was acting outside or in excess of jurisdiction, insofar as that notion or concept is understood or applied in the relevant authorities. He submitted that this Court should not depart from that long line of cases, or hold that there is no longer any distinction between the immunity available to inferior and superior court judges.

203    The first step in resolving the controversy between the parties in respect of judicial immunity is to consider and determine precisely what the authorities establish in relation to the scope of the immunity available to inferior court judges at common law. Before delving into that difficult area, two brief points should be emphasised.

204    First, as has already been noted, the Circuit Court was undoubtedly an inferior court: AAM17 at [26].

205    Second, many inferior court judicial officers are now protected by various forms of statutory immunity. For whatever reasons, judges of the Circuit Court were not protected by any statutory immunity.

The scope of judicial immunity of inferior court judges

206    It is well established that a superior court judge is not liable for anything he or she does while acting judicially, which is generally taken to mean when acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction, though he or she may be mistaken in that belief: Sirros v Moore [1975] 1 QB 118 at 135D (Lord Denning MR); [1974] 3 All ER 776.

207    There is, however, also authority to the effect that “judges of courts other than superior courts are not immune if they act outside jurisdiction whether or not they did so knowingly (unless the excess of jurisdiction was caused by an error of fact in circumstances where the court had no knowledge of or means of knowing the relevant facts …)”: Wentworth v Wentworth [2000] NSWCA 350 at [195] (Heydon JA, with whom Fitzgerald JA and Davies AJA relevantly agreed), citing Halsbury’s Laws of England (4th ed) vol 1(1) at [216]; Abimbola Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993) pp 64-65; and Enid Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal of Judicial Administration 249 at 260. It should be noted that those parts of Heydon JA’s judgment in Wentworth v Wentworth which deal with this issue are not reproduced in the reported version of the judgment: (2001) 52 NSWLR 602.

208    Putting aside, for the moment, the issue of whether the distinction between the immunity available to superior and inferior court judges still exists, or should be changed or departed from, the thorny question is precisely what acting “outside” or “in excess of” jurisdiction means in this context. In Wentworth v Wentworth, Heydon JA suggested that the answer to that question was “obscure” (at [195]). Given the somewhat protean or chameleon-like character of the word “jurisdiction”, the safest guide would appear to be the cases in which inferior court judicial officers have been held liable in damages for consequences flowing from a purported exercise of jurisdiction held to be beyond the relevant limit: cf In re McC (A Minor) [1985] 1 AC 528 at 544F (Lord Bridge); [1984] 3 All ER 908.

209    Before embarking on a consideration of some of the key cases, three brief points should be noted.

210    First, Mr Stradford did not, as the Judge appeared to suggest, contend that an inferior court judge loses immunity from suit if the judge commits any form of jurisdictional error as that concept is understood in contemporary administrative law jurisprudence in Australia. The relevant authorities suggest that there are at least some types or categories of jurisdictional error that may not, or would not necessarily, result in an inferior court judge losing the immunity.

211    Second, Mr Stradford submitted that it was ultimately unnecessary for the Court to endeavour to determine the precise meaning, or precise metes and bounds, of the concept of “outside” or “in excess of” jurisdiction in this context. It is only necessary for the Court to determine whether the errors found to have been made by the Judge fell within the apparent metes and bounds of that concept as established in the cases. There is in my view considerable merit in that submission.

212    Third, and flowing from the second point, I do not propose to attempt to address all of the many decided cases in this area. The cases stretch back over 400 years. Rather, I propose to primarily address those cases that directly bear on the issue having regard to the particular facts and circumstances of this case, particularly those where an inferior court officer has been held liable in circumstances comparable or analogous to those in this case.

….

Conclusion as to the scope of judicial immunity of inferior court judges

340    Cases stretching back over 400 years have drawn a distinction between the scope and boundaries of judicial immunity applicable to inferior court magistrates and judges, as opposed to superior court judges. While those cases are mostly English, they have been applied in some cases in Australia: see in particular Raven v Burnett and Wood v Fetherston. While the rationale or policy behind the distinction has been questioned, no case in England or Australia has authoritatively determined that the distinction has been abolished. No case in Australia has authoritatively determined that the distinction does not apply in the common law of Australia.

341    It may perhaps be accepted that the common law concerning the metes and bounds of the judicial immunity available to inferior court judges may not be entirely pellucid and to that extent may be said to be somewhat unsatisfactory. The clarity of the law in this area has not been assisted by the often unhelpful and, with the greatest respect, sometimes ill considered or inadequately reasoned obiter dicta in cases concerning statutory immunity or the immunity available to superior court judges. Be that as it may, it is necessary and incumbent on me to endeavour to distil the applicable principles from the authorities. In In re McC, Lord Bridge described that task, insofar as the common law of England was concerned, to be “daunting” (at 1 AC 537B). It is, in my view, all the more daunting insofar as the common law of Australia is concerned.

342    The principles that, in my view, emerge from the authorities concerning the scope and boundaries of the judicial immunity enjoyed by inferior court judges may be summarised as follows.

343    First, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge makes an order in a proceeding or cause in which the judge did not have “subject-matter” jurisdiction; that is, no jurisdiction to hear or entertain in the first place. It does not matter whether the judge knew, or did not know, that he or she did not have jurisdiction to hear or entertain the proceeding. It also does not matter whether the judge believed or assumed that he or she had jurisdiction in the proceeding as a result of a mistake of fact or a mistake of law. The only exception is where the judge had no knowledge, or means of ascertaining, the fact or facts that relevantly deprived him or her of jurisdiction to hear or entertain the proceeding. The cases which support this principle include: Marshalsea; Calder v Halket; Houlden v Smith; Raven v Burnett; and Wood v Fetherston.

344    Second, in certain exceptional circumstances, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge, despite having subject-matter jurisdiction in the proceeding, nevertherless makes an order without, or outside, or in excess of the jurisdiction he or she had to hear or entertain the proceeding.

345    Third, one of the exceptional circumstances in which an inferior court judge may lose the protection of judicial immunity and be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge is guilty of some gross and obvious irregularity in procedure, or a breach of the rules of natural justice, other than an irregularity or breach which could be said to be a merely narrow technical. The cases which support this principle include: In re McC at 1 AC 546H-547B and R v Manchester City Magistrates’ Court at 1 WLR 671E-F.

346    Fourth, another exceptional circumstance in which an inferior court judge may be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge acts in excess of jurisdiction by making an order, or imposing a sentence, for which there was no proper foundation in law, because a condition precedent for making that order or sentence had not been made out. The cases which support this principle include: In re McC at 1 AC 549C-D and 558; Groome v Forrester; M’Creadie v Thomson; O’Connor v Issacs; and R v Manchester City Magistrates’ Court.

347    I do not suggest that the latter two principles exhaustively define or catalogue the circumstances in which an inferior court judge, despite having subject-matter jurisdiction, may nevertheless lose the protection of judicial immunity by making an order which was without, outside, or in excess of, that jurisdiction. For reasons that will become apparent, it is unnecessary for me to go further than identifying what appear from the authorities to be the established circumstances where an inferior court judge will not be able to rely on judicial immunity to protect them from suit.

348    Before endeavouring to apply these principles to this case, it is necessary to briefly deal with the Judge’s contention that, despite being an inferior court judge, he should nevertheless have the protection afforded to superior court judges in the circumstances of this case.

Was the Judge entitled to the immunity of a superior court judge in the circumstances?

349    The Judge contended that when he imprisoned Mr Stradford, he was acting judicially in the exercise of a superior court power. That is because he was, in his submission, acting pursuant to s 17 of the FCC Act, which provided that the Circuit Court had the “same power to punish contempts of its power and authority as possessed by the High Court in respect of contempts of the High Court”. The High Court is a superior court of record. Accordingly, so the Judge submitted, the immunity that attaches to a superior court judge should apply to his exercise of that power.

350    The Judge relied, in support of that submission, on the following statement by Latham CJ in Cameron v Cole (1944) 68 CLR 571 at 585; [1944] HCA 5:

An inferior court such as a county court may be made a superior court for a particular purpose. Thus where a court is described in a statute as a branch of a principal court and is also given the jurisdiction of the Court of Chancery for purposes of bankruptcy jurisdiction, it may, though a county court (and therefore an inferior court) in its ordinary jurisdiction, be a superior court in relation to bankruptcy proceedings.

351    I am not persuaded that the Judge was acting as a superior court judge when he imprisoned Mr Stradford, or that he was entitled to the immunity afforded a superior court judge.

352    It may be accepted that, as Cameron v Cole establishes, legislation can provide that an inferior court may be deemed, or taken to be, a superior court for certain purposes. Section 17 of the FCC Act does not, however, provide, either expressly or by necessary implication, that the Circuit Court is deemed, or taken to be, a superior court when exercising the contempt power conferred on it by that provision.

353    It may also be accepted that in some circumstances where a statute confers certain specified superior court jurisdiction on an inferior court, the inferior court may, by necessary implication, be taken to be a superior court when exercising that jurisdiction. In Day v The Queen (1984) 153 CLR 475 at 479; [1984] HCA 3, the High Court held, in effect, that a sentence imposed on a person convicted on indictment by the District Court of Western Australia (an inferior court) had the same effect and operation as a sentence imposed by a superior court. That was because a provision in the District Court of Western Australia Act 1969 (WA) provided that the District Court had “all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence” and that “[i]n all respects … the practice and procedure of the Court as a Court of criminal jurisdiction shall be the same as the practice and procedure of the Supreme Court in like matters”.

354    Section 17 of the FCC Act, however, is far removed from the sort of statutory provision considered in Day v The Queen. Section 17 of the FCC Act is far more confined in its scope and operation. It does not confer any jurisdiction on the Circuit Court. It simply provides that the Circuit Court has the same power to punish for contempt as the High Court. Section 17 also does not provide that, in exercising that power, the Circuit Court’s practice and procedure was the same as the High Court’s practice and procedure, or that orders made in the exercise of that power are taken to have the same effect, in terms of enforceability, as orders made by the High Court in the exercise of its contempt powers.

355    I am not persuaded that the effect of s 17 of the FCC Act is that an order made by the Circuit Court in the exercise of its contempt powers is taken or deemed to be an order of a superior court. Still less am I persuaded that the effect of s 17 of the FCC was such that a Circuit Court judge who exercises that court’s contempt powers is taken to be a superior court judge, or to be acting as a superior court judge, in particular for the purposes of judicial immunity.

356    There is, in any event, no sound basis for concluding that the Judge was exercising the power under s 17 of the FCC Act when he imprisoned Mr Stradford. Nothing that was said or done by the Judge indicates that he was exercising that power. More importantly, as discussed in detail earlier, Pt XIIIB of the Family Law Act has been held to be a “complete code for dealing with contempts”: DAI at [47], [67]. The jurisdiction that the Judge was exercising in Mr Stradford’s proceeding was jurisdiction under the Family Law Act. Accordingly, when exercising, or purporting to deal with Mr Stradford’s alleged contempt, the Judge was exercising the power in Pt XIIIB of the Family Law Act, not the powers under s 17 of the FCC Act.

357    I was not taken to any persuasive authority in support of the proposition that a judge of an inferior court should be considered to be a superior court judge, and thereby attract the immunity of a superior court judge, when exercising contempt powers conferred on the inferior court in terms similar to s 17 of the FCC Act. Nor am I satisfied that the Judge was exercising the Circuit Court’s powers pursuant to s 17 of the FCC Act when imprisoning Mr Stradford. In those circumstances, I am not persuaded that the Judge’s potential liability should be considered on any basis other than that he is entitled to the judicial immunity afforded to an inferior court judge.

Is the Judge immune from liability arising from his imprisonment of Mr Stradford?

358    Having regard to the principles applicable to the judicial immunity of an inferior court judge that I have outlined, I consider that the Judge is liable for any loss or damage suffered by Mr Stradford arising out of his unlawful imprisonment. As an inferior court judge, the Judge was not protected from liability arising from his imprisonment of Mr Stradford. That is so for a number of reasons.

359    First, while the Judge obviously had jurisdiction to hear and entertain the proceeding between Mr and Mrs Stradford, being a proceeding pursuant to the Family Law Act, it is clear that when he imprisoned Mr Stradford, purportedly for contempt, he acted without or in excess of jurisdiction. That is because, as discussed earlier in these reasons, he imposed that sanction without first finding that Mr Stradford had in fact failed to comply with the relevant orders and was in fact in contempt.

360    It may be accepted, for present purposes, that when the Judge ordered that Mr Stradford be imprisoned for contempt, his Honour did so on the basis of a mistaken belief or assumption that Judge Turner had already found that Mr Stradford had failed to comply with the disclosure orders and was therefore in contempt. The problem for the Judge, however, is that his Honour plainly had the means to ascertain whether Judge Turner had in fact made any such findings. The Judge plainly should have been aware that her Honour had made no such findings. Judge Turner had made no order or declaration to that effect and had delivered no judgment. The Judge could readily have ascertained that Judge Turner had not found that Mr Stradford had failed to comply with the disclosure orders and had certainly not made any finding that Mr Stradford was in contempt. There is no evidence to suggest that the Judge made any attempt to speak with Judge Turner or consult the court records which, no doubt, would have revealed that no such finding had been made.

361    In this respect, the circumstances of this case are entirely analogous to the circumstances in Wood v Fetherston; O’Connor v Issacs; In re McC and R v Manchester City Magistrates’ Court in particular. A finding of contempt was a condition precedent to the imposition of the sanction imposed by the Judge. There was no proper foundation in law for the making of the imprisonment order. In imposing a sentence of imprisonment in the absence of any such finding, the Judge acted without or in excess of jurisdiction in the requisite sense.

362    Second, for the reasons given earlier, as the alleged contempt by Mr Stradford was a failure to comply with orders made in the exercise of jurisdiction under the Family Law Act, the Judge was required, before imprisoning Mr Stradford, to satisfy himself of certain matters under either Pt XIIIA or Pt XIIIB of the Family Law Act.

363    If the matter were to proceed under Pt XIIIB, the Judge had to be satisfied not only that there had been a contravention of the disclosure orders, but also that the contravention involved a “flagrant challenge to the authority of the court”. The Judge made no such finding.

364    If the matter were to proceed under Pt XIIIA, the Judge had to be satisfied not only that Mr Stradford had contravened the disclosure orders, but also that he did so without reasonable excuse and that, in all the circumstances of the case, it would not be appropriate to impose one of the other sanctions provided in ss 112AD(2)(a), (b) or (c). The Judge did not satisfy himself of any of those matters.

365    The making of the required findings under either Pt XIIIA or Pt XIIIB were, in effect, conditions precedent to the Judge imposing a sentence of imprisonment. In imposing a sentence of imprisonment in the absence making any of those findings, his Honour acted without or in excess of jurisdiction in the requisite sense. There was no proper foundation in law for the making of the imprisonment order. In that regard, the circumstances of this case are again analogous to the circumstances in Wood v Fetherston, O’Connor v Issacs, In re McC, and R v Manchester City Magistrates’ Court.

366    Third, in conducting the contempt proceedings against Mr Stradford in the way he did, the Judge was guilty of a “gross and obvious irregularity of procedure”: cf In re McC at 1 AC 546H. The statutory procedure for contempt, other than contempt in the face of the court, was prescribed in r 19.02 of the FCC Rules. The procedure followed by the Judge did not comply with any of the requirements of r 19.02. There was no application in the approved form and no supporting affidavit. The Judge did not clearly advise Mr Stradford of the contempt allegation, or ask him to state if he admitted or denied that allegation. Nor did his Honour hear any evidence in support of the allegation, or determine if there was a prima facie case, or invite Mr Stradford to state his defence and, after hearing that defence, determine the charge. For the reasons given earlier, it was not open to the Judge to dispense with the procedure in r 19.02. Nor did he do so. The available inference is that he either ignored it, or proceeded in complete ignorance of it.

367    The Judge’s complete failure to comply with the procedure in r 19.02 of the FCC Rules could not possibly be seen as a “narrow technical ground”: cf In re McC at 1 AC 547A.

368    The gross and obvious irregularity of procedure that infected the Judge’s purported exercise of his contempt powers meant that he acted without or in excess of his jurisdiction in the requisite sense.

369    Fourth, the Judge was guilty of a gross denial of procedural fairness and breach of the rules of natural justice having regard not only to his complete failure to comply with the procedure in r 19.02 of the FCC Rules, which was clearly designed to ensure procedural fairness, but also more generally. As the FamCA Full Court found in Stradford, the Judge pre-judged that the alleged contravention of the order would constitute a contempt within the meaning of the Family Law Act (at [20]); pre-judged the penalty for the contravention without first knowing the particulars of the alleged contravention (at [21]); performed the roles of prosecutor, witness and judge (at [22]-[27]); and made findings concerning the alleged contravention without any evidentiary foundation (at [57]). As the FamCA Full Court said at [53]:

It is difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party on any prospective orders, much less contempt, and much less contempt where a sentence of imprisonment was, apparently, pre-determined as the appropriate remedy.

370    The FamCA Full Court concluded that the entire episode constituted a “gross miscarriage of justice” (at [9] and [73]).

371    Needless to say, the denial of procedural fairness in this case could not possibly be characterised as a “narrow” or “technical” breach. It constituted, at the very least, a “gross and obvious irregularity of procedure”, to use the words of Lord Bridge in In re McC (at 1 AC 546H). The result of it was that the Judge acted without or in excess of jurisdiction in the requisite sense.

372    The four findings just outlined, considered either individually or cumulatively, deprive the Judge of judicial immunity in respect of the impugned acts.

CONCLUSION – LIABILITY OF THE JUDGE

373    For the reasons given earlier, Mr Stradford established against the Judge all of the elements of the tort of false imprisonment. Mr Stradford was imprisoned as a result of the imprisonment order made, and the warrant issued, by the Judge on 6 December 2018. Mr Stradford’s imprisonment was not lawfully justified because the imprisonment order and warrant were invalid and of no effect. They were infected by manifest jurisdictional error.

374    For the reasons that have been given, the Judge was not immune from Mr Stradford’s suit on the basis of his status as an inferior court judge. That is because he is an inferior court judge and when he made the imprisonment order was made, and issued the warrant, he acted without or in excess of jurisdiction.

375    It follows that the Judge is liable to Mr Stradford in respect of the tort of false imprisonment

(emphasis added)

….

A link to the full decision is here.

In the recent case of Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194 (28 August 2023), the Supreme Court – in the context of a personal injury (psychiatric) claim against the opposing lawyers (including second and third defendant barristers) who acted in underlying litigation –  considered whether a tortious duty of care was so owed by the lawyers, advocates’ immunity and whether express adoption Model Litigant Principles or the Barrister’s Conduct Rules founded such a duty. Relevantly Justice Sullivan, striking out the negligence causes (but leaving the underlying claim for litigation) wrote:

Duty of Care

[57] Despite the content of paragraph 97 of the Amended Statement of Claim, the plaintiff only advanced submissions on the basis that the duty he was pleading and relying upon was a tortious duty of care said to be owed by the second defendant to the plaintiff.[13] That is how I have proceeded.

[58] The underlying facts pleaded against the second defendant concern his conduct in Court as an advocate for a retained client. The plaintiff’s case as pleaded maintains that the second defendant owed a tortious duty of care to the plaintiff variously:

(a) to abstain from acting on instructions of the second defendant’s client in the course of acting in the two interlocutory applications, due to the second defendant’s knowledge that the plaintiff had a serious medical condition (cancer) which was in need of treatment in the future; and

(b) to intervene and warn the plaintiff of some undefined obvious risk in order to avoid the plaintiff suffering an injury or death.

[59] No matter how the duties are cast by the plaintiff, they all raise the issue of whether a barrister, appearing in Court for one party, owes a duty of care to the opposing party.

[60] Where there is contentious and hostile litigation, as a general proposition, no duty of care will be owed by a legal representative of one party to the opposing party. In Lee v Abedian & Ors [2017] 1 Qd R 549,[14] Bond J (as his Honour then was) considered the matter in the context of an alleged tortious duty of care cause of action. It was alleged that a legal firm, and the individual solicitor within the firm, acting for one party had negligently provided a report to a foreign prosecutor. The provision of the report was said to have led to a wrongful prosecution and to the plaintiff being placed into custody. The relief in that proceeding was for both pure economic loss damages, and for general damages for physical, mental and emotional harm.[15] It is relevant to note this personal injuries component to the relief sought in Lee. It is also relevant to note that the conduct complained of in Lee was not engaged in as part of the course of existing litigation between the plaintiff and the client of the legal representatives.[16]

[61] At paragraph [50] Bond J observed:

‘In my view, the suggested duty runs up against the stumbling block of the following statement by Brennan CJ in Hill v Van Erp (1997) 188 CLR 159, 167:

“Generally speaking, however, a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client.’”

[62] His Honour then went on to acknowledge that there were exceptions to the general rule as follows:[17]

“(a) There are cases where although there is no formal solicitor/client relationship, a solicitor’s conduct demonstrates an assumption of responsibility, with known reliance by the plaintiff, such that a duty of care may arise by reason of an implied professional retainer agreement: see the case cited in Carey v Freehills.[18]

(b) There are cases in which a duty of care owed by a professional to someone other than their client has been held to exist on the basis of normal principles relating to negligent misstatement, which include the requirements of assumption of responsibility and reasonable reliance: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465; Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241.

(c) There are also cases in which a duty of care has also been recognised as being owed by a solicitor to someone other than their client (e.g. beneficiaries in a will or the client’s trustee in bankruptcy), but in those cases there is a coincidence of interest between the client and third party: see Hill v Van Erp (1997) 188 CLR 159; Blackwell v Barroile Pty Ltd (1994) 51 FCR 347.”

In that case His Honour found that the facts did not fit within any of those exceptions.

[63] In respect of the pleading against the second defendant, I would similarly observe that the pleaded facts of this case do not fit within any of those exceptions.

[64] His Honour then considered whether a duty of care could arise as a novel circumstance or category. After having examined the principles relating to this proposition at paragraphs [53] to [56], his Honour, in rejecting that such a novel circumstance or category could arise, observed, inter alia, as follows:

“[57] To contend that the solicitors owed the third party a duty of care is to seek to do the very thing which Brennan CJ said could not be done, namely to temper the duty undoubtedly owed to the client by the existence of a duty to a third person whose interests in the transaction are not coincident with the interests of the client. I would apply his Honour’s observations to conclude that a duty of care owed to the client in connection with the production of a report concerning potential legal proceedings against a third party cannot be tempered by the existence of a duty owed to the client’s potential adversary in those legal proceedings.

…

[59] My conclusion is consistent with the reasoning in Al-Kandari v J R Brown & Co [1988] EWCA Civ 13; [1988] QB 665 (a case cited with approval by Dawson J in Hill v Van Erp at 187) that a solicitor acting for a party who is engaged in hostile litigation owes a duty to the client and to the Court, but the solicitor does not normally owe any duty to the client’s opponent. I do not see that any relevant distinction is to be drawn between the position of an actual opponent, litigation having commenced, and that of a potential opponent, litigation being only contemplated.”

[65] As Bond J recognised, the alleged duty in that case would have been inconsistent with the desirability of coherence with the law governing the duty of undivided loyalty a legal practitioner owes his or her client. He further observed that it had been long recognised that a consideration which spoke adversely to the recognition of a duty, was that the proposed duty of care may supplant or subvert the existence of other principles of law which had already struck a particular balance between rights and obligations, duties and freedoms.

[66] In support of this last proposition, Bond J cited Sullivan v Moody (2001) 207 CLR 562 at [42] per Gleeson CJ, Gaudron, McHugh and Callinan JJ. To this I would add the similar observations made in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 as per the obiter dictum statements of Gleeson CJ at [24]-[28], Gaudron J at [57], Gummow and Kirby JJ at [231] and Hayne J at [298].

[67] As referred to by Bond J, the general proposition had been expressed in the English Court of Appeal decision of Al-Kandari[19] by Donaldson MR (with whom Dillon LJ agreed) at p. 672 as follows:

“A solicitor acting for a party who is engaged in ‘hostile’ litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client’s opponent: Business Computers International Ltd v Registrar of Companies [1987] 3 WLR 1134. This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v Elman [1940] AC 282…”

[68] Further, this general proposition is also supported by appellate authority in Queensland. In The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307, the lead judgment was given by McPherson JA, with whom both Jerrard JA and Chesterman J (as his Honour then was) expressly agreed. One of the issues in that decision was whether one party to litigation owed a tortious duty of care to the opposing party in respect of the commencement and conduct of the litigation. At paragraphs [17] to [19], McPherson JA identified and approved of a line of Australian, English and Canadian authorities that stood for the general proposition that no such duty was owed either by the litigant, or his or her legal representative, to the opposing party. Those authorities included Al-Kandari, but with particular reference to the judgment of Bingham LJ at page 675. Bingham LJ had articulated a statement of the general propositions which was broadly similar to that of the Master of Rolls set out above. Bingham LJ stated:

“In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client’s adversary. The theory underlying such litigation is that justice is best done if each party, separately and independently advised, attempts within the limits of the law and propriety and good practice to achieve the best result for himself that he reasonably can without regard to the interests of the other party. The duty of the solicitor, within the same limits, is to assist his client in that endeavour, although the wise solicitor may often advise that the best result will involve an element of compromise or give and take or horse trading. Ordinarily, however, in contested civil litigation a solicitor’s proper concern is to do what is best for his client without regard to the interests of his opponent.”[20]

[69] Consistent with the reasons of Bond J, Bingham LJ contemplated that there nevertheless could be circumstances in contested civil litigation where a solicitor, for a limited purpose, had stepped aside from his role as solicitor and agent of one party and assumed a different role, either independent of both parties or as agent of both. That limited exception has no relevance to the pleaded case against the second defendant in this proceeding.

[70] In The Beach Club Port Douglas[21]the alleged tortious duty of care was inconsistent with the duty owed by the legal practitioner to his or her client. That part of the pleading was struck out. Whilst leave to re-plead was granted on appeal, it was clear that this was not for the purpose of an attempt to re-plead a tortious duty of care. His Honour McPherson JA concluded his reasons with the following comment:

“It may be added, however, that one would not expect the claim in negligence to be resurrected in future in such a pleading…”.[22]

[71] Importantly for the case against the first defendant, McPherson JA approved of the principle that no such duty would arise in adverse litigation not only in respect of the legal representative, but also the litigant itself. After having discussed the Canadian authority of Geo. Cluthe Manufacturing Co. Ltd v ZTW Properties Inc (1995) 23 O.R (3d) 370, his Honour stated as follows:

“…But the decision in the Canadian case is additional authority for the proposition that, apart from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff. I consider we should apply these English, Australian and Canadian decisions in this case.”[23]

[72] Other examples of where the general proposition has been applied to strike out tortious duty of care causes of action alleged against an opponent’s legal representatives are Chapel of Angels Pty Ltd & Ors v Hennessey Building Pty Ltd & Ors [2022] QSC 112 at [45][24] and Islam v Mitry Lawyers Pty Ltd t/as Mitry Lawyers Pty Ltd [2023] NSWSC 700 at [80]. Both were pure economic loss cases. However, Lee is an example of a strike out application which involved a claim for damages for both pure economic loss, and physical and mental harm.

[73] The nature of litigation as adversarial necessarily sharpens the focus on a need for a litigant by itself, and through its legal representatives, to seek to act in the litigant’s best interest. This may include acting in a robust way which causes offence or distress to an opposing party. Ultimately, if that conduct is sought to be called into question then it is not by the imposition of a common law duty of care. Safeguards against inappropriate conduct fall to be dealt with in other spheres of operation such as regulation by the Legal Services Commission, the Court’s control of its own proceedings, the supervision of officers of the Court, or other causes of action as may be available in the circumstances of a particular case.[25]

[74] Accordingly, as a matter of law, the tortious duty of care pleaded against the second defendant cannot be supported.

[75] The entirety of the pleaded case to the extent that it concerns the second defendant ought to be struck out.

[76] It is not appropriate to grant leave to re-plead a tortious duty of care where the cause of action is not available at law.

Advocates’ Immunity

[77] The second defendant submits that even if an alleged tortious duty could be found, the plaintiff’s claim would be barred by operation of advocates’ immunity.

[78] One classic articulation of that immunity was in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 by Gleeson CJ, Gummow, Hayne and Heydon JJ at [1] as follows:[26]

“…at common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work out of court which leads to a decision affecting the conduct of a case in court…”

[79] In reviewing the immunity in D’Orta-Ekenaike, the High Court focussed chiefly on the consideration of finality. Gleeson CJ, Gummow, Hayne and Heydon JJ held that the central justification of the immunity was the principle “that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances…”[27]. Their Honours later observed that underpinning the system of justice was “the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need.”[28]

[80] In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, the majority, being French CJ, Kiefel, Bell, Gageler and Keane JJ, made the following observation:[29]

“…The advocate’s immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity. Because this incidental operation of the immunity comes at the expense of equality before the law, the inroad of the immunity upon this important aspect of the rule of law is not to be expanded simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby.”

[81] While it may be accepted the precise scope of immunity is not yet settled,[30] a number of features of the immunity seem to be uncontroversial, namely:

(a) the principle applies both to barristers and solicitors;

(b) the principle also applies to both acts and omissions;[31]

(c) the principle can be applied both to the conduct of a case in Court and also to work out of Court which leads to a decision affecting the conduct of the case in Court or work intimately connected with work in a Court;[32] and

(d) the relevant conduct must “move litigation towards a determination by a Court.”[33]

[82] Whilst the principle as articulated in D’Orta-Ekenaike was put in terms of an advocate not being sued by his or her client for negligence in the conduct of the case, authority supports that the immunity applies equally to an advocate being sued by an opposing party.

[83] In Love v Robbins (1990) 2 WAR 510, the Western Australian Court of Appeal was considering the immunity of prosecutors. An accused who had been convicted in a criminal trial later brought a writ against two Crown prosecutors in respect of both an initial trial, and also a second trial in which the conviction actually occurred. The causes of action raised against the prosecutors were for damages for breach of duty and conspiracy.

[84] Chief Justice Malcolm (with whom Seaman and Wallwork JJ agreed) made the following statement in respect of the immunity principle as articulated in Giannarelli v Wraith (1988) 165 CLR 543:[34]

“If the immunity principle extends to counsel actually briefed or retained by a client to protect him from suit by the client, there would be even greater justification for the application of the immunity principle to counsel briefed or retained by an opposing party or, as in the present case, counsel employed by the Crown. Mason CJ said in Giannarelli (at 555) that the justification for the immunity rested on public policy grounds.”

[85] After referring to what Mason CJ stated as the conceptual basis for the immunity, Malcolm CJ continued:[35]

“The foundation of that principle is the perception that great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation. As McTiernan J noted in Cabassi with reference to the rule in its application to witness: ‘…it is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.’

The considerations dictate the need to protect freedom of speech in court, likewise dictate the need to protect the advocate’s freedom of judgment with respect to what is said and done in court. Just as the principle protects the judge and the jury in relation to what they decide, so it protects the advocate. The advocate is as essential a participant in our system of justice as are the judge, jury and the witness and his freedom of judgment must be protected: see the discussion by Brett MR in Munster. The need for that protection arises from “the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty”, to repeat the words of words of Fry LJ in Munster.” (footnotes omitted)

[86] As recognised by Malcolm CJ, the immunity extends to any form of action. This would include a personal injuries claim arising from a breach of a tortious duty of care.

[87] Here, the impugned conduct of the second defendant was in respect of his appearance in Court where he made both written and oral submissions opposing the plaintiff’s two applications. In the first hearing his submission included that the mediation was pre-emptory as disclosure had not yet taken place, and in the second hearing his submissions included that a separate question proposed by the State of Queensland should be determined prior to any mediation.

[88] In both circumstances, the second defendant’s conduct was that of an advocate in Court which sought to move the litigation towards a determination by the Court.

[89] Accordingly, if I were incorrect on my conclusion that a duty of care is not owed by counsel to his client’s opponent in adversarial litigation, then I would still strike out the pleading against the second defendant on the basis that the cause of action is unmaintainable due to advocates’ immunity. Again, for the same reasons dealt with under the “Duty of Care” heading, it would be inappropriate to make an order which would facilitate a re-pleading where the immunity is in operation.

…..

[132] I will commence first with a consideration of the MLP. The unilateral adopting of the MLP by the State of Queensland and other State agencies, such as the first defendant, does not create some form of freestanding legal duty enforceable by an opposing party in litigation. In Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 an application was brought to strike out a pleading of the State of Queensland which was inconsistent with what was said to be the contents of certain joint expert reports. Part of the submissions advanced on the strike out were that the content of the joint expert reports had effectively resolved the central issue in the proceeding. The submissions proceeded on the contention that the State, by adopting a position in the proceeding contrary to the conclusions expressed in the joint reports, was thereby in breach of various provisions in the MLP which bound the State.[38]

[133] This submission was rejected by O’Bryan J at par [74], where his Honour stated:

“Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory applications brought by the applicant cannot be resolved on the basis of those Principles.”

His Honour also went on to note that this proposition, at the end of argument, was not truly disputed by the applicant. The statement by O’Bryan J was clearly correct.

[134] I also note that on the application for leave to appeal from his Honour’s decision, the Full Federal Court in Malone Obh of Western Kangaulu People v State of Queensland [2021] 287 FCR 240, made the following observation at paragraph [217], “[t]he Judge was also plainly correct in holding that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. The applicants did not contend to the contrary.”

[135] In the present case it was not pleaded that there was a contract between each of the third defendant and first defendant on the one part, and the plaintiff on the other part, to abide by the MLP. Having had the benefit of the actual communications of 18 January 2023 in the affidavit material before me, it is evident that no such pleading could be made. The legal representative of the Crown merely communicated the fact that the first defendant, as an agency of the State of Queensland, must comply with the MLP in dealing with the plaintiff’s claim. This simply re-stated the effect of the introductory lines to each of paragraphs 1 and 2 of the MLP. The communication went on to state that a declaration was not required. There was objectively no offer or acceptance present between the plaintiff and the first defendant. There was, of course, no communication at all between the plaintiff and the third defendant about the MLP prior to the conference.

[136] Turning to the second point, which concerns the Bar Rules. There is no duty owed by a barrister to his or her client’s opponent arising from breaches of the Bar Rules. The Bar Rules are promulgated pursuant to s 220 of the Legal Profession Act 2007 (Qld) (‘LPA’). They form part of a regime established under the LPA for the professional regulation of barristers and the conduct of their work. That regime does not give rise to any duties owed to an opposing party in litigation which would support any action for damages.

[137] Turning then to the third point which concerns the PIPA. The pleading makes reference to non-compliance with s 38(6) of the PIPA. There is no statutory duty created by s 38(6) of the PIPA which provides a private right to compensation against an opponent or the opponent’s legal representative in the event of a breach.

[138] The PIPA does not expressly state that a breach of s 38(6) provides a private right of action for compensation. Generally speaking, in the absence of such an express statement in a piece of legislation, it will rarely be inferred that Parliament intended such a private right to exist in consequence of a breach of a statutory obligation or duty.[39]

[139] There is nothing in the substance or structure of the statutory scheme contained in Chapter 2 of the PIPA which supports such an inference in respect of a breach of s 38(6) of the PIPA. The section forms part of a scheme to promote settlement. It is untenable to suggest that Parliament intended to create a proliferation of private statutory causes of action for compensation which would then be able to be litigated in parallel to the primary causes of action which the scheme sought to promote settlement in the first place.                                 

[emphasis  added]

A link to the case can be found here.

[13] See the plaintiff’s written submissions at paragraphs [39] to [50] and Transcript 1-33, line 48 to 1-34, line 4; 1-120, line 13 to 14 and 1-121, line 44 to 48.

[14] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549.

[15] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [6], [34] and [35].

[16] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [43]– [45].

[17] Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [51].

[18] Carey v Freehills [2013] FCA 954; (2013) 303 ALR 445, 425 at [311] per Kenny J.

[19] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665.

[20] Al-Kandari v JR Brown & Co [1988] EWCA Civ 13; [1988] QB 665 at 675 per Bingham LJ.

[21] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307.

[22] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [24].

[23] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19].

[24] This decision was upheld on appeal in Chapel of Angels Pty Ltd & Ors v Hennessy Building Pty Ltd [2022] QCA 232.

[25] The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475; [2006] 1 Qd R 307 at [19]– [20] and Lee v Abedian & Ors [2016] QSC 92; [2017] 1 Qd R 549 at [62].

[26] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [1].

[27] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[28] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [84] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[29] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [52] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[30] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [11] per Dalton J (as her Honour then was).

[31] Port Ballidu Pty Ltd v Mullins Lawyers [2017] QSC 91 at [13] per Dalton J (as her Honour then was); Burrell Solicitors Pty Ltd & Anor v Reavill Farm Pty Ltd & Ors [2016] NSWSC 303 at [159] per White J.

[32] Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1 at [41] and [53].

[33] Ibid at [38].

[34] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.

[35] Love v Robbins (1990) 2 WAR 510 at 517 per Malcolm CJ.

…

[38] Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 at [54].

[39] Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [1181] to [1182] per O’Loughlin J.

…

In Elwood v Director of Public Prosecutions [2023] NSWSC 772 (14 July 2023) Davies J set aside a decision of His Honour Magistrate Prowse, of the Local Court at Dubbo, NSW, in relation to committal of the appellant for trial.  In so doing, Davies J was critical of the Magistrate for his remarks concerning the decisions of Supreme Court judges in the particular sphere.  His Honour, Magistrate Prowse, was described in a subsequent article in “The Australian” newspaper, on 19 July 2023, as “a distinguished Magistrate and the President of the Association of Australian Magistrates who was … “known for his at times harsh criticism of parties”.  This was reported as including remarking to a domestic violence defendant Glenn Dirix that if he had “a choice of speaking with Mr Dirix or picking up dog excreta I would go for the dog excreta really because it’s less odious”.

Davies J wrote:

1. The plaintiff seeks leave to appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal relates to the plaintiffs having been committed for trial on three offences on 26 October 2022 by Magistrate Prowse in the Local Court at Cobar. It also concerns two related summary matters dealt with on that day.
2. An appeal pursuant to s 53(3)(a) requires grounds that involve a question of law alone, and the Court must in any event grant leave. The plaintiff seeks, in the alternative, an order in the nature of certiorari, in respect of the Magistrate’s decision if the questions raised do not involve a question of law alone.
3. The defendant does not dispute that some of the questions, reformulated in an amended summons, involve questions of law alone, and does not dispute that error is shown in respect of some of the determinations of the Magistrate. Notwithstanding the defendant’s concessions the Court needs to be satisfied that a question of law alone is involved and that error is shown.
4. For the reasons which follow, I am satisfied that some of the questions raised in the amended summons involves questions of law alone, that the Magistrate has erred, and that leave should be given to bring the appeal. It is not necessary, therefore, to embark upon consideration of the interesting, but more difficult question about whether the new provisions in Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) (“CPA”) are subject to the decision of the Full Court of the Supreme Court in Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145; and see Sankey v Whitlam (1978) 142 CLR 1 at 22 and Wentworth v Rogers [1984] 2 NSWLR 422 at 434.

….

19. A chronology was then handed up, and reference made to s 76 of the CPA.

…

HIS HONOUR: Yes Mr Crown? Yes Ms Melhuish?

MELHUISH: Yes your Honour in furtherance of the application for an adjournment in these matters I seek to read onto the record an affidavit under my own hand if I can tender that.

AFFIDAVIT OF MS MELHUISH TENDERED

HIS HONOUR: Sure. Any objection?

DOOHAN: No I’ve seen the affidavit and read it your Honour, there’s no objection.

HIS HONOUR: Well I’ve read that.

DOOHAN: Your Honour I’ll try and be a little bit helpful, I’ve reduced some short submissions to writing. If I could hand them up, they’re only a page and a half. I’ve given a copy to my friend.

MELHUISH: There’s no objection, I’ve seen those.

HIS HONOUR: All those cases you rattled off I thought I brought in but they must still be out on the – can you see the three cases sit on the desk in chambers please? I thought I brought them back in. Anyway moving along.

DOOHAN; Your Honour I referred to the old case of President Kirby when Kirby J of the High Court was President of the Court of Appeal. I’ve got the remarks that I refer to in handwriting if you want me to read them out but.

HIS HONOUR: No not really.

DOOHAN: It was just the…

HIS HONOUR: See I don’t think Kirby J or Yehia J or Basten J has ever been met with reality on the ground in relation to these sorts of matters.

DOOHAN: Yes your Honour.

HIS HONOUR: I fully accept what their Honours have said, I must say I intellectually fundamentally disagree with Basten J in the matter that was delivered yesterday or the day before. And I’m sure his Honour will probably lose not a wink of sleep over that and I accept that his Honour as his Honour usually has and probably will continue until they not let him come through the door any longer, deliver well thought out intellectually based judgments of high quality.

It seems to me as a lay – not a lay observer, but somebody being involved in the situation for a long period of time at this lower level that the whole of the EAGP scheme was as contended for by the appellant but unsuccessfully. But I’m bound by what Mr Basten J, Basten JA has now said and consequently I am, but I don’t think it makes a bit of difference to this sort of situation. Yes that’s them, thanks very much.

So the one that I was just referring to is Landrey. And I accept as I say what Mr Basten J in that reflects the view of the Court of Appeal and bound by it as I am I will follow it, but it is as far as I can see irrelevant to these proceedings. Except to apply what is said at the case note. I suppose I can find the actual – there we go 31, just read 31 out. Paragraph 31, and I suspect it’s Mr Basten J because he delivered the judgment on behalf of the Court. “It is readily apparent from this synopsis of chapter 3 part 2 that the purpose of a committal proceeding is to ensure’’.

…

HIS HONOUR: Righto. So back to the quote.

“That the purpose of a committal proceeding is to ensure proper case administration (as said) of the criminal process, with the dual intention that cases are not listed for trial unless the possibilities of guilty pleas have been explored and so far as possible exhausted. Again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire.”

So it goes on. So the critical words there are proper case management. But so I’ve read that, and I’ve read what Yehia J has said and I’m aware of that, in fact I think In the past I may have fallen into error in not engaging in that process, but with Yehia’s admonishment ringing in one’s ears one doesn’t propose to ever do so again. And I think Mr Button J is on the same wavelength as Yehia J.

But that doesn’t come to grips with the gravamen of this particular matter. That seems to been on a – the gravamen of this particular matter is that it is one year and eight days old and it’s clear in the circumstances that the progress spoken of by both Ms Melhuish in her affidavit and by the Crown in the Crown certificate is apparent because the charge case certificate that’s now been filed withdraws all but sequences 13, 16 and 25 which is certified for the District Court and leaves also sequences 19 and 20 for summary disposal.

With the greatest of respect to all the parties and to Mr Elwood the underlying legal principles in relation to each and everyone of those offences is crushingly simple. Unless Mr Elwood is raising a defence of that would attract the provisions that he would be declared not fit to plead and therefore can’t understand what’s going on, there is nothing complex in these matters. The only complexity arises from the involvement usually of lawyers or the only complexity arises involves the person being spoken to refusing to grasp reality, and the only complexity thereafter is seeking to perpetuate that which is relatively simple.

…

But at this stage the Crown is certifying those three matters. Seeking to have them committed for trial or committed for sentence, one or the other to the other place being the District Court. The police pursuit aspect in relation to one of the summary matters and driving whilst disqualified in relation to one of the other …(not transcribable)… matter. Again, there’s no complexity in relation to either of those two things. There is no reason advanced by either of the two parties for the matter to be continually and fruitlessly delayed.

I DO NOT PROPOSE TO GRANT THE ADJOURNMENT SOUGHT BY EITHER PARTY.

DOOHAN: Court pleases.

HIS HONOUR: So what pleas are being entered to the two summary matters 19 and 20?

MELHUISH: Not in a position to enter pleas at this stage your Honour.

HIS HONOUR: Well in that case pleas of not guilty are entered by the Court. Now a brief is in a position – how many Crown witnesses are there?

…

So Mr Elwood in relation to sequences 19 and 20 the Court has entered a plea of not guilty on your behalf, that’s clearly been marked, I better write down the date – today. Consequently the matter being returned to the Police Prosecutor for a prosecution, and being told that it’s a Bourke matter,

THE MATTER IS ADJOURNED TO 8 NOVEMBER 2022 AT BOURKE TO FIX A HEARING DATE AND BAIL NOT BEING APPLIED FOR IS REFUSED.

What pleas if any are being issued, entered I should say in relation to sequences 13 and 16 and 25?

MELHUISH: I’m not in a position to enter pleas today your Honour.

HIS HONOUR: Does anyone want to say anything further in relation to the 76 matter?

DOOHAN: To the s 76?

HIS HONOUR: Aspects, yes, apart from what you’ve already put in.

DOOHAN: No your Honour not as to 76 apart from whether your Honour wishes to give any more detailed reasons apart from what you’ve already said that’s…

HIS HONOUR: I will. I will.

…

HIS HONOUR: But this is your opportunity to put in submissions in relation to it.

DOOHAN: Thank you your Honour.

HIS HONOUR: In addition to what you put in, you don’t wish to, do you wish to say anything further in addition to what you’ve put in Ms Melhuish?

MELHUISH: No your Honour.

…

72. It may be observed from the portions of the transcript reproduced earlier, that the Magistrate made a number of highly inappropriate remarks which had the tendency to disparage judges of this Court. He also expressed his own personal views about the EAPG system which Parliament enacted.
73. It is not the place of a magistrate to say, “I intellectually fundamentally disagree with [a judge of the Court of Appeal] in the matter that was delivered yesterday”. The doctrine of stare decisis requires that judicial officers in lower courts accept the decision of higher courts. Further, to say of judges of this Court that he does not think that they have “ever been met with reality on the ground in relation to these sort of matters”, particularly when their decisions had been cited to him, is to bring this Court and the system of justice into disrepute.
74. These remarks are not made from any personal sensitivity for the judges of this Court, or for those who enacted the amendments to the CPA in regard to committal proceedings. The community, and those who come before the criminal justice system, must have confidence in the courts and in the way criminal justice operates.
75. For that reason, the proceedings will be remitted to the Local Court to be dealt with by a different Magistrate.
76. I make the following orders:

1. Grant leave to appeal.

2. Uphold grounds 1b, and 2a and 2b of the Amended Summons.

3. Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25.

4. Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20.

5. Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse.

6. No order for costs of the proceedings to the intent that each party should pay their own.

A link to the case can be found here.