Proper Form of Communication with the Court and Timing of Non-Compliance Remediation Orders

In Amirbeaggi (Trustee), in the matter of Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 (23 October 2023), Judge Given of the Sydney Registry of the Federal Circuit and Family Court of Australia, made helpful comments in relation to the proper practice for practitioners in that jurisdiction, and generally, in respect of communications with the court in respect of orders, and also in respect of the timing of consent orders sought for remediation of non-compliance by one or more of the parties with prior orders:

[1]  These reasons for judgment ultimately underpin the making of relatively commonplace timetabling orders, but are necessary to address an apparent deterioration in the standard of conduct before the Court, which should not be allowed to endure.

BACKGROUND

[2]  The instant proceedings were commenced on 4 August 2023 in the Court’s Bankruptcy jurisdiction, at which time they were given a return date of 14 September 2023 for directions. On 12 September 2023, correspondence was sent to my Chambers in advance of that fixture, proposing consent orders to which the parties had agreed. Later the same day, I made the following orders:

1. The directions hearing listed on 14 September 2023 is vacated.
2. The respondents file and serve Notice of Opposition and Affidavits by 12 October 2023.
3. The matter be listed for a directions hearing at 9:30am on 2 November 2023 in person in Court 13.1 Level 13, 80 William Street Woolloomooloo.
4. Costs reserved.

(September orders).

[3]  Order 1 of the September orders was not complied with by the respondents. On 17 October 2023, being five days after the time for compliance with order 1 of the September orders had passed, my Chambers received email correspondence from a “Law Clerk” in the employ of the solicitors for the second respondent, in the following terms (original emphasis):

Dear Associate

We refer to the abovementioned proceedings listed for 2 November 2023 before Judge Given.

We attach signed short minutes of order shared with the Court concurrently.

The Applicant and First Respondent’s solicitors have consented to the Orders and have been copied into this email.

Please have the Directions hearing relisted in accordance with the Orders.

Kind regards

(October email).

[4]  Upon receipt of the October email, I listed the matter for a directions hearing on 19 October 2023 and required that the legal practitioners for the parties appear in order to address:

(a) the failure of the respondents to comply with the orders made on 12 September 2023, which appeared to give rise to, and be rectified by, the proposed consent orders being proffered; and

(b) on what basis, and by which authority, the Court could be directed by a law clerk to make orders and relist proceedings.

DIRECTIONS HEARING

[5]  At the directions hearing on 19 October 2023, the applicant was represented in-person by Counsel. Each of the solicitors for the respective respondents appeared via Microsoft Teams, with the Court’s leave.

[6]  The solicitor for the second respondent acknowledged the October email was not appropriate.

[7]  The Court was informed that the October email was sent by the law clerk (who was acknowledged to not be admitted as a legal practitioner) having been settled by a solicitor in the employ of the same firm, but who was not the solicitor on the record in this matter. In the context of these proceedings, it was the latter upon whom responsibility for the sending of the October email ultimately rests. The Court was informed by Counsel for the applicant (who only came into the matter after the October email was sent) that the October email was distributed for consent among the representatives for all parties, but had not been scrutinised as thoroughly by his instructor as perhaps it should. Having regard to r 22.5.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Rules), practitioners should be cautious in reviewing and consenting to correspondence which will be sent to the Court by other parties on their behalf.

[8]  The solicitor for the first respondent made submissions to the effect that there were medical issues encountered by his client which had led to the inability of the respondents to comply with the September orders. If that be so, it is not addressed at all by the October email nor, even by the time of the directions hearing, was it the subject of any evidence (let alone medical evidence) before the Court.

DUTY OF FORMALITY BEFORE THE COURT

[9]  Regrettably the Court is, with increasing frequency, receiving correspondence from parties in the nature and terms of the October email. The October email was the second such email received by this Court (the other being in unrelated proceedings) within a week. That other email did not emanate from the parties or legal representatives in these proceedings, however the issue is of sufficient concern to the Court as to warrant these written reasons. Unless specified as arising in this case, the following observations are made more generally.

[10]  Orders made by the Court, whether by consent or otherwise, must be complied with.

[11]  Any party who apprehends an inability to so comply should approach the Court in advance (and in accordance with the terms of any specific liberty to apply) proffering an explanation for the foreshadowed inability to comply. It should be a rare state of affairs indeed in which the Court is approached for dispensation after orders have been breached. In such a circumstance, an explanation is not only warranted, but essential, to explain to the Court why the orders have been breached and to seek any further indulgence. The aforementioned explanations will most appropriately be proffered by Affidavit. When exercising a liberty to apply, the terms of that liberty should be observed: it is a liberty to “apply” for relisting, not a liberty to submit alternate orders for automatic processing.

[12]  Legal practitioners in Australia (whether solicitors1 or barristers2 ) have a duty of formality before the Court, in terms to the following effect:

A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.3

[13]  Correspondence to Chambers which will necessarily be read by the Judge is a communication before the Court. As such, an email sent to Chambers becomes a communication with the Court itself.

[14]  There is arguably nothing so informal, or possibly arrogant, as to approach a Court with orders which have been agreed amongst the parties and simply presume, or in the instant case direct, that they will be made (or to use the parlance of days’ past “rubber-stamped”: see Balakrishnan v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 138 at [36]). The concluding use of “Kind regards” (see [3] above) or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.

[15]  Where a party is represented, submissions should not be made to the Court by anyone other than a legal representative. An un-admitted law clerk would not, without leave, be permitted to appear in Court for a party. As such, non-legal staff in law firms should not write to the Court to make substantive representations and/or seek orders. Supervision arrangements for lawyers who do write to the Court should also be stringent. Conduct or submissions which are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the Court.

[16]  The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since the COVID-19 pandemic restrictions which forced a number of Courts to conduct hearings using online technologies. That same circumstance has deprived a generation of young lawyers from exposure to proper Court etiquette. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.

[17]  Similarly, it would be a serious mistake to confuse the ease of use provided by email as giving rise to a correlative reduction in propriety, professionalism and formality.

[18]  The advent of the use of email between legal practitioners and Courts was, inter alia, to enable parties to approach Chambers swiftly for case management purposes. Expedience and formality are not mutually exclusive.

PROPOSING CONSENT ORDERS

[19]  Approaches to the Court, even for case management events such as a directions hearings, must comply with the duty referred to at [12] above. The proposal of consent orders should be undertaken in terms which properly acknowledge that the Court retains a full discretion as to whether they will be made, and in which terms. Consent orders are proposed consent orders unless, and until, the Court makes them. No correspondence to the Court should be in terms to the effect that the parties have reached agreement and are simply informing the Court of a change to the orders. No correspondence to the Court should direct the Court to relist a matter, simply because the parties have agreed to a date.

[20]  None of the above matters contradict the overarching purpose of this Court’s practice and procedure as set out in ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2001 (Cth) and r 1.04 of the Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth). It is lamentable to reach a time in the practice and procedure of litigation where the matters set out above need to be explained in written reasons. Yet, here we are.

CONCLUSION

[21]  In all the circumstances of this case, the October email correspondence was not appropriate, and reflected a lack of appreciation for the matters discussed in [10] to [20] above. The parties have apologised for the discourtesy, and I have accepted those apologies.

[22]  Ultimately, the orders which I have made do not reflect the proposed consent orders sent under cover of the October email, by reason of the ventilation of other matters at the directions hearing. The Court reiterated with the parties that in the event of any perceived inability to comply with the now extended timetable, the Court expects the liberty to apply to be properly exercised, and in appropriate terms.

1 r 18 Solicitors’ Rules.

2 r 45 Legal Profession Uniform Conduct (Barristers) Rules 2015.

3 r 18 Solicitors’ Rules.

(emphasis added)