Introduction
The 2011 Barrister’s Rule is a collection of barristers’ conduct rules made by the Bar Association.
Pursuant to s. 225 of the Legal Profession Act 2007, the rules took effect when the Minister’s notice of their having been made was gazetted. That occurred on 23 December 2011.
Once the rules took effect, then pursuant to s. 227(1) of the Legal Profession Act 2007 they became binding on us. Critically, pursuant to s. 227(2) of that Act, failure to comply with the rules is capable of constituting unsatisfactory professional conduct or professional misconduct.
Despite the language in which they are expressed, the rules do not set out mere aspirational goals. They set out binding norms for professional conduct. They must be regarded as standards with which the Courts and the public are entitled to expect that we will comply. Indeed an explicit purpose of the rules is to provide common and enforceable rules and standards: rule 2.
Whilst there is a great deal which is not new in the 2011 Barristers’ Rule, one of the aspects which is new is the express articulation of a number of specific duties under the heading “Efficient administration of justice”.
The purpose of this paper is to draw attention to these new provisions and to suggest some of the implications they might have for interlocutory practice in the civil jurisdiction.
The relevant rules
The new section of the rules is as follows:
Efficient administration of justice
56. A barrister:
(a) must seek to ensure that the barrister does work which the barrister is briefed to do in sufficient time to enable compliance with orders, directions, Rules or practice notes of the court; and
(b) if the barrister has reasonable grounds to believe that the barrister may not complete any such work on time must promptly inform the instructing solicitor or the client.
57. A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:
(a) confine the case to identified issues which are genuinely in dispute;
(b) have the case ready to be heard as soon as practicable;
(c) present the identified issues in dispute clearly and succinctly;
(d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and
(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.
58. A barrister must take steps to inform the opponent as soon as possible after the barrister has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.
The express articulation of rules in this way is not new to the regulation of the conduct of advocates in this country. For example, rules 23 A15, A15A and A15B of the NSW Revised Professional Conduct and Practice Rules 1995 made by the Council of the Law Society of New South Wales, pursuant to its power under section 57B of the Legal Profession Act 1987, on 24 August, 1995 were in almost identical terms.
Indeed, whether the express articulation of rules in this way adds anything at all which is new may be strongly doubted. It has long been known that the paramount duty of barristers is to the administration of justice and that that duty has carried with it certain obligations in relation to efficiency. See, for example, the judgment of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 (at 556, emphasis added):
… the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.
Nevertheless, the provisions are new so far as the express regulation of the conduct of barristers in this State is concerned. As I have said, they express binding norms of professional conduct. And they at least serve to remind us all that there are certain outcomes in relation to the efficient administration of justice which we are obliged to seek to achieve.
Implications of a real attempt to comply with the rules
What implications might faithful adherence to both the letter and the spirit of the new rules have for interlocutory practice in the civil jurisdiction?
Except in relation to the adjournment provision in rule 58 (to which I will return later in this paper), the new rules require that we “seek to ensure” various types of efficient outcomes.
Whilst we do not warrant an efficient outcome we are bound to try to obtain one. To “seek” in this context obviously means “to try” and “to ensure” means “to make sure or certain to come”.
The language means that we are bound to make a real effort to bring about the efficient outcome which is the subject of the particular rules.
Let us turn now to consider the content of the rules.
Timely performance of brief
Rules 56 and 57(b) mandate that we seek to ensure timely performance of our work both in relation to compliance with imposed time limits and, objectively, so as to have the case ready to be heard as soon as is practicable.
In interlocutory practice, that often sounds in the capacity to meet direct deadlines prescribed by the UCPR, Court rules and directions made by supervising judges. Deadlines most often breached concern pleadings and time set for filing of material and submissions.
The solution is obvious, although sometimes out of one’s control.
On the other hand, how often have we all simply failed to organise our workload so as to permit a deadline to be achieved, because we know that we will be able to negotiate a consent slippage with our opponents?
There is one implication, however, beyond an injunction that we seek to ensure that we do our work in a timely manner. I observe as follows:
(a) Barristers must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to have the case ready to be heard as soon as practicable.
(b) Justice Fraser’s paper, to which I have earlier referred, identifies2 commentary which suggests that these rules are directed against lawyers’ delaying tactics.
(c) It is certainly true that it is often in a client’s strategic or tactical interest to slow down the pace of litigation.
(d) I suggest that it is difficult to see how a barrister could permissibly participate in steps calculated to achieve that goal.
(e) I suggest that compliance with this aspect of the rules requires a barrister to give consideration to the need for, purpose of and effect on when the case can be heard of virtually every conceivable interlocutory step which the barrister is briefed to take.
(f) Of course that is not to say that a barrister cannot do a task of the objective effect of performance of which would be to delay when a case can be heard. The Macquarie dictionary defines “practicable” relevantly as “capable of being put into practice, done or effected, especially with the available means or with reason or prudence”.
(g) In each case, the question will be the legitimacy of what is done.
Confine the case to identified issues which are genuinely in dispute and present those issues clearly and succinctly
Rule 57(a) requires us to seek to ensure that we do our work so as to confine the case to identified issues which are genuinely in dispute. Rule 57(c) sets out the related obligation that we seek to ensure that we do our work so as to present the identified in issues in dispute clearly and succinctly.
So far as interlocutory practice is concerned, the main instances in which compliance with these duties will become significant are —
(a) the manner of drafting of originating process and supporting and opposing affidavits;
(b) where pleadings are involved, the manner of drafting of pleadings;
(c) where a particular interlocutory application is concerned, the purpose and effect of that application;
(d) the drafting of written submissions; and
(e) the separate and distinct task of the oral presentation of the case after written submissions have been prepared.
Compliance with both duties assumes that the barrister has performed the substantive task of adequate preparation in order to understand the issues of fact and law which must either be established or resisted so as to vindicate the particular interests of the client which are at stake in the case.
Rule 57(a) requires that the case be confined in a particular way. I observe:
(a) There are two aspects to this duty.
(b) First, there is the task of ensuring that the issues which are created by the manner in which we perform our work are genuinely in dispute.
(c) This is a reflection of the substantive ethical duties of responsible use of court process and maintaining independence: see rules 41 and 42 and 62 of the 2011 Barristers’ Rule.
(d) Compliance with those rules can often give rise to a conflict between the duty to the client and the duty to the Court. I suggest:
(i) The addition of the new rule emphasizes the illegitimacy of any form of participation in tactical delaying tactics or point-taking.
(ii) Compliance with the new rule should stop knee-jerk particulars requests, or complaints about aspects of pleading or affidavits which are not genuinely in dispute.
(e) Second, there is the task of identification of the issues. This is mostly a matter of organisation. There are ways of drafting originating process, affidavit material and pleadings and submissions which promote the identification of issues and ways which don’t. I suggest:
(i) Liberal use of headings and subheadings and a real effort to promote structure is necessary.
(ii) In a big pleading or submission, why not have a Table of Contents?
(iii) What is necessary here is always to have an eye to promoting ease of identification of issues.
Let us turn then to the related duty expressed in rule 57(c), namely the clear and succinct presentation of the issues. That advocates often fail in this regard is a perennial complaint of judges.
I suggest that compliance with the duty requires at least the following:
(a) We should conduct a triage of our arguments so that we can jettison the points on which we can’t win. As to this:
(i) There is an ethical content here, namely we should not seek to run the unarguable.
(ii) But there is also an advocacy point, namely we should seek to promote the chances of good arguments by not burying them in a pile of additional weak arguments.
(b) We should organise the written and oral presentations. This is a basic skill generally requiring only common sense and diligence, but one often ignored.
(c) We should focus on where the dispute lies. That means we must carry out the analysis of our own and our opponent’s cases to know where the differences are and we must then focus our presentation on those differences, not merely on a recitation of our side of the argument without paying any attention to the countervailing views.
(d) We should remember that the task of the oral presentation of the case after written submissions have been prepared is a separate and distinct task from that of written submissions. It should never involve merely embarking upon an oral repetition of all the points which were made in writing.
(e) We should always have any eye for making the reception of the arguments by busy judges easier. Techniques for so doing are legion. For example:
(i) If the material read on an interlocutory dispute is large, but the really critical documents only narrow in compass, we should think about extracting for the judge a working bundle of the critical documents;
(ii) Mini chronologies are sometimes useful;
(iii) Schedules isolating competing arguments are sometimes useful; and
(iv) Tables, drawings and photographs are often helpful.
Limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and
Obviously, this duty is also a particular reflection of the substantive ethical duties of responsible use of court process and maintaining independence: see rules 41 and 42 and 62 of the 2011 Barristers’ Rule.
But for the present purposes, I want to focus on more practical matters. The rule reminds us to look to the real necessity of the extent of evidence which we are involved in placing before the Courts.
For interlocutory practice, I suggest:
(a) We should consider the extent to which we can rely on affidavit material already read. If documents are already in affidavit material which has been filed on previous occasions, then all we need to do is to ensure that our opponents are alert to our intention to rely on earlier affidavits or the particular part(s) thereof. That can be flagged by an identification in the new affidavit of the particular part of the old affidavit on which reliance is placed.
(b) We shouldn’t forget that if relevant material is already going to be before the court by virtue of its inclusion in our opponent’s material, then we don’t need to include it in the material which we are settling. There is no need for the repetition that is so often seen in practice.
(c) We should think twice about the actual extent of exhibits. Is it absolutely essential to exhibit the entirety of contracts or reports to which there is going to be only brief reference in the argument? By way of example, consider the applications which are often made these days in relation to the validity of adjudications under the Building and Construction Industry Payments Act. The extent of the exhibited material is often measured in the number of boxes rather than the number of pages, and it is mostly completely irrelevant.
Occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case
Compliance with this duty (especially in conjunction with the duty to confine issues to that which is genuinely in dispute) compels co-operation between counsel. Thus:
(a) We need to exchange outlines once they are ready.
(b) We need to bear in mind the possibility that time in Court might be saved if the Court is given an opportunity outside to digest written submissions outside Court hours. We should of course comply with our obligations under rule 53 of the 2011 Barristers’ Rule. That means we don’t seek to steal a march on an opponent by unilaterally providing submissions to the Court. Unless the Court has already required submissions to be provided to it, then the only way in which we can provide them to the Court other than by handing them up in open court is by obtaining our opponent’s consent.
(c) We should avoid taking points which can and likely will be fixed up at the cost of an adjournment. For example:
(i) If we have formulated objections to affidavit material, we should communicate the fact and substance of the objection to our opponents once we know they will be taken.
(ii) If a document is not disputed and during the course of argument it becomes clear that it should be before the Court, why wouldn’t compliance with our duty require us not to object to it being tendered without formal proof? Obviously it would be different if there were dispute about authenticity or issues of surprise.
(d) If an argument about particulars or disclosure falls in such a way that decision on one dispute of fact or law will dictate the answer for other disputes, then we should co-operate with our opponents to isolate the points for decision for the judge.
I suggest that compliance essentially requires that we seek always to bring to the manner in which we discharge our tasks a focus on how the hearing will go, as a matter of practicality. We should be focussed on solving the problem of the efficient disposition of the case involving taking up the least amount of Court time. Once we have that focus, the various techniques by which Court time can be used efficiently should become obvious to us.
Adjournments
Finally, the new rules address the vexed issue of adjournments.
It is important to note that the wording of this rule does not adopt the “seek to ensure” approach of the other rules I have considered.
The rule is mandatory and absolute in form.
It operates once the barrister has reasonable grounds to believe that there will be an application to adjourn any hearing.
As soon as possible after that stage is reached —
(a) the barrister must inform the opponent of the fact and grounds of the application; and
(b) the barrister must seek the opponent’s consent to inform the Court of that application.
The evident purpose of the rule is early identification of the issue so that solutions other than disputed adjournment applications before the Court may be considered.
For present purposes, I merely seek to draw attention to the obligation and to suggest that having reasonable grounds to believe an application to adjourn will be made identifies a time for flagging the application which is much earlier than is presently acted on by many barristers.
Conclusion
It may be doubted whether there are many cases in which breach of the rules I have addressed will be provable. But that is an irrelevance.
Ours is a profession of which certain standards of professional conduct are expected, regardless of the likelihood of our ever actually being brought to account for breach of those standards.
One important aspect has always been a focus on efficient disposition of the administration of justice. The new rules remind us of this aspect of our duty.
John Bond S.C.
Footnotes
- The author records his indebtedness to Justice Fraser’s paper “The Ethics of the Advocate” which as the address to the recent graduating class of the Bar Practice Course. That paper presents a far more complete and scholarly analysis of the history and purpose of the explicit regulation of barristers’ ethics than is presented here. It will be published on the Supreme Court website.
- At paragraph 31, referring to Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Butterworths, 5th ed, 2010) at p 525.
