Topics to Be Covered

LEC 6: DUTY TO COURT Source of duty  Common Law o Not referenced in Act/Rules o Overriding duty as: Officer of the Court: o D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12: “Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount.” Duty to Court v duty to client (conflict situations) o Manage client’s expectations - e.g. possible conflicts with clients instructions o discovery of documents (duty of full disclosure) o adjourn/delay case (duty to adhere to just, cheap & resolution of issues) o participate in mediation (duty to act in good faith) o construe a false alibi case (duty not to mislead) o coaching client and witnesses (duty not to influence evidence) o witnessing a document without seeing the deponent sign (duty not to mislead) Relevant Practice Rules o Preamble to Rules: L in ALL their dealings with Ct should: o Act with competence, honesty and candour. o Be frank in their responses. o Diligent in their undertakings. o PR17 to 24 o PR23 adopts Bar Rules A16-72 re ‘advocacy rules’ Commencing proceedings 3 Topics:  Duty not to bring a hopeless case  Practitioner’s costs liability  Reasonable prospects of success Hopeless Cases Duty NOT to bring hopeless case! Re Cooke (1889) 5 TLR 407 per Lord Esher MR at p208  “If a client came to a solicitor with a case which was such that the solicitor must know that it was absolutely and certainly hopeless, and if the client nevertheless insisted on the solicitor going on with the case, although there could be absolutely no doubt as to the result and although the solicitor knew this, then, if the solicitor were to go on with the case in consequence of these mad instructions in order to make costs for himself, he would be betraying his duty to his client and would be guilty of a dishonourable act…” What if a case is borderline ‘hopeless’ vs ‘little merit’?  L must exercise great care to ensure that Ct not deceived or time wasted.  L must inform client re risk if they run proceedings: Re Cooke (1889) 5 TLR 407 per Lord Esher MR at p208 “…if the solicitor could not come to the certain and absolute opinion that the case was hopeless, it was his duty to inform the client of the risk he was running, and, having told him that and having advised him most strongly not to go on, if the client still insisted on going on the solicitor would be doing nothing dishonourable in taking his instructions.” Costs orders against ‘hopeless case’  Ct has discretion to make CO against unsuccessful party  CO against lawyer – in circ if costs improperly incurred by lawyer  CO on party/party or solicitor/client (indemnity) basis: eg. Flower and Hart (A Firm) v White Industries (Qld) Pty Ltd (1999) (Fed)  CO where no reasonable prosp of success  CO where serious neglect, incompetence, misconduct Case Examples: White Industries v Flower & Hart (1998) 156 LAR 169:  FACT: FH (lawyers for client against WI). Client couldn’t pay debt to WI. So litigated re fraud in contract (weak claim) just to delay paying debt/litigation from WI.  HELD: CO against FH (indemnity) – client has no money to pay WI. o Primary purpose to delay – abuse of process! o FH breach duty to Ct – start fraud proceedings with no proper foundation Kolavo v Pitsikas (2003) NSW CA 59  FACT: sol/bar advised client to start contract/tort proceedings which lacked proper COA  HELD: CO against sol/bar  pay client’s costs AND indemnify for Def’s costs Reasonable prospects of success (civil)  Duty: NOT commence proceedings with no RPS: ss 344-349 LPA 2004 (NSW)  s345(1): “A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonable arguable view of the law that the claim or the defence has reasonable prospects of success.”  Provable fact: if L reasonably believes on available material that there is proper basis for alleging fact: s345(2)  RPS: RP of damages being recovered or defeating/reducing claim: s345(4)  Does not apply to advice in prelim matter: s346  Cannot commence proceedings EVEN if client instructs: s345(3)  Not offence – but may amount to prof misconduct or unsatisf prof conduct: s347(1)  Any doc (claim/defence) must be CERTIFIED RPS by principal or resp lawyer: s347(2) or will not be accepted by Ct reg: s347(3)  CO against lawyer re acting without RPS: s348 Case examples: judicial interpretation Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 o Accepted: “so lacking in merit or substance as to be not fairly arguable” : Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 (Barrett J)  CO against L must be exercised with care/discretion and only in clear cases  L not improper/neg JUST bcos act in case plainly domed to fail (L not ultimate judge of cred of wit or validity of arg)  J must consider full exigencies of environ – make allowance  if then plainly unjustifiable  CO  L must have full/sufficient notice of CO claim and get opp to answer o If hamper by confidentiality – give L benefit of doubt  J must control new/costly form of “satellite litigation” Eurobodalla Shire Council v Wells & Ors [2006] NSWCA 5 (lawyer/party indemnity)  FACT: women injured cos bench collapsed – sue council. Could not show what caused bench to break.  HELD: no RPS - “serious and fundamental defects”  L pay costs o Essential part of COA missing – defect obvious at start o L was reckless in allowing proceedings Firth v Latham & Ors [2007] NSWCA 40 o FACT: kid run over – claim against driver (1st D) and Council (2nd D) for obstructing sign. Anticipated would get evidence later against Council from 1st D’s case. Didn’t. o HELD: no RPS against council - “high risk tactic”  L pay Council costs o L must regularly re-evaluate RPS of client’s cases (esp when new evi appears or anticipated evi doesn’t appear!) Fowler, Corbett and Jessop trading as Haydon Fowler, Corbett and Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178  FACT: P slip/fall claim against D. D won, but seek indemnity costs against P’s L.  HELD: denied – L don’t have to indemnify o Case was difficult, but not “hopeless” o L was methodical, had evidence, but just wasn’t accepted by J  CAUTION: tendency for litigants to try get costs from lawyers now! Civil Proceedings L must NOT wilfully/knowingly mislead Ct:  Fail to provide material to Ct  Providing false material to Ct Failure to provide material Gen: passive withholding of info permissible BUT misleading prohibited  Tombling v Universal Bulb Co Ltd (1951) 2 TLR 289, Lord Denning “The duty of counsel to his client in a civil case or in defending an accused person – is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the court, either on the facts or on the law, but short of that, he may put such matters…such as in his discretion he thinks will be most to the advantage of his client….”  Saif Alli v Sydney Mitchell & Co (1980) AC 198 at p220, Lord Diplock “A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts, although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister’s knowledge.” Duty of ‘frankness in court’ – AR 21 – 23  Must not knowingly make misleading statement to Ct: AR21  Must take all nec steps to correct any misleading statement made by L to Ct ASAP after L realises statement misleading: AR22  No duty to error by opponent or other person: A23 Duty not to mislead – AR25 – 29  Duty to inform Ct re any binding authority, Full Ct of FC, Full Ct of Sup Ct, COA of Sup Ct, applicable legis: AR25 o Don’t need to do at time when opp is going to withdraw/resign – unless appro time to tell has already happened: A26 o If L becomes aware after judgment or dec pending – must inform Ct/opp or request for relist: A27  No duty to inform Ct re client’s character/past – so long as not misleading statements: AR29 Providing false material  L should not blinding accept client’s “truth” – should investigate matters  If L finds client lied to Ct or got another to lie, L must: AR 23 o Refuse to continue case – unless client auth L to tell Ct re lie o Tell Ct but ONLY with client’s instruction 5 Issues: 1. Oral testimony 2. Unsupported allegations 3. Discovery of documents (by affidavit) 4. Half truths (in affidavits) 5. Dealings with witnesses (eg coaching of witnesses) 1. Oral testimony  Oral evi must NOT be presented in way that gives false implications!  Meek v Fleming (1961) 2 QB 366 o FACT: M photographer claim against F (police inspector) re assault and false imprison. Before hearing, F demoted bcos re matter of deceiving Ct – fact delib withheld. o HELD: F fail – new trial! . Cred of F was sig matter – Ct was misled.  Tombling v Universal Bulb Co Ltd case (disting above) o FACT: record evidence of Wit for P – driving offence (less relevant re credit). o HELD: withheld OK – no new trial . Evi only incidental sig. . Not deliberate deception.  Must not make unsupported/irrelevant allegations against 3 rd parties/Wit  abuse of process  L must make allegation/suggestion: AR 35 o Reasonably justified by material available to L o Appropriate for robust adv of client’s case on merits o Not principally to harass/embarrass/gain collateral adv for L  Must not allege any matter of fact – unless reasonable grounds that factual material provides proper basis: AR 36  Must not allege criminality, fraud, serious misconduct – unless reasonable grounds that available material provides proper basis AND client wants allegation and has been advised re consequences: AR37  Must not suggest in cross-X re credit – unless reasonable grounds that acceptance of suggestion would dim wit’ credit: AR 38  If mitigate client’s crim by alleging serious misconduct against 3rd party not there to answer – must not identify directly/indirectly unless L believes disclosure nec for robust defence. 2. Discovery of documents o Order for discovery: party must produce list of docs + aff that all docs in their possession/power o Duty: L must explain to client sig of discovery (meaning of relevance): Myers v Elman (1940) AC 282 per Lord Aitkin. o Must investigate if reasonably suspects other docs exist o Don’t need to go beyond reasonable steps to investigate o Esp important to fraud claim (may amount to aiding/abetting concealment of crime) 3. Half truths o Half truth: where only part of true facts presented (may positively mislead) o Re Thom (1918) 18 SR (NSW) 70 o FACT: Aff to remove children from mom claim – left husband, living de facto, “unchaste life”. Mom’s AFF – denied allegations. Later admit adultery – mom’s sol aware before. o HELD: . Aff is statement of facts, not pleading . Consciously withheld info in aff. o PR17(1) – o if L knows/told that client is withholding info re by Ct order (intend to mislead) or made false statement in Aff o AND client refuse to correct o THEN L can terminate retainer (on reasonable notice) o PR17(2) – o L must not aff alleging criminality, fraud or serious misconduct o UNLESS suff evidence (factual material, admissable) and client wishes so 4. Dealings with witnesses o Wit should not be coached: AR 43, 44 o L must not suggest/condone Wit re content of any partic evidence they are giving o BUT can warn Wit to tell truth, test Wit re inconsistencies etc o Wit interviewing o Gen: can interview Wits, BUT should interview separately o L must not talk with 1+ lay witness at a time re discussing contentious matters o Contentious matter o May affect Wit’s evidence – AR46 o BUT can talk re undertakings, admissions, concessions of fact, amendments of pleadings or compromise – AR47 o L cannot talk to wit during cross-x (severely dim evidence if seen talking in between cross-x), unless: AR48 o Cross-x consented before o L believes on reasonable grounds – special circ and has informed cross-x re intention or will do ASAP after o There is no property in a witness – o Must not prevent/discourage Wit from talking/interviewed by opp: AR 49 o But can tell Wit they don’t need to cooperate: AR 50 o Contact with other party (with lawyer) o Must not communicate directly with another party (who is rep by another lawyer): PR 31, unless: o Notified other party’s L re intention – but other party’s L doesn’t reply in reasonable period o Comm is to notify other party re unable to contact their L and ask them to contact their L o L thereafter notified other L re communication o Contact to arrange orderly transfer of affairs to new L o Dealings with opponent clients o Cannot contact opposing party to talk/interview, unless: PR 18 o If unrep – party fully informed re interview’s purpose and advised to get independent legal advice o Agreed to interview on conditions – ie both lawyers present o Kennedy v The Council of the Incorporated Law Institute of NSW (1931) 13 ALJR 563: o FACT: L visit Defendant’s Wit at Wit’s home to persuade change story o HELD: misconduct – struck off . L’s only purpose to get Wit to change story . L didn’t care right/wrong or Wit believe/not  only fav to client’s case. Criminal Proceeding 1. Duty of prosecution Roles: o Prosecution: to ensure truth IS told o NOT: to get convictions or be competitive with Defence o Defence: to ensure lies are NOT told o NOTE: DPP/OPP do Crown prosecutions, but police prosec handle less serious cases. o Police prosec have their own code of ethics (not lawyers). Codes of Ethics: o Specific duties of prosecution: AR62-72 AR62: “A prosecutor o must fairly assist the court to arrive at the truth, o must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and o must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.” Case example: Whitehorn v The Queen (1983) 152 CLR 657: o FACT: accused indecent assault of 7yo girl. Only evidence was signed record of interview. Pros did not call girl as wit bcos not useful or capable. Later girl identify perp as ‘Skinny Guts’, which was nickname of father, NOT accused. o HC: conviction quashed – o Pros failed to call girl as wit o Pros fail to give acceptable reason for not calling her as wit o Accused denied fair trial o LAW: o Pros must not decide to call/not wit – bcos of tactical reasons o Pros must call ALL wit necessary for presentation of WHOLE picture, unless valid reasons (eg. too many wit needed to establish 1 point, wit untruthful/unreliable) 2. Duty of Defence Admission of guilt Issues – if accused confesses !  Can L still defend accused?  Should L refuse to defend?  In what circ can L stop acting for guilty client? PR20 – if client confesses, practitioner must not:  Put a defence case inconsistent with confession.  Falsely claim or suggest another committed offence.  Continue to act if insists on giving evidence denying guilty or making statement asserting innocence.  BUT can act for client, pleading not guilty by:  Ensuring pros is put to proof of its case  Argue evidence insufficient  Argue pros fail to establish commission of offence by client AR33 – also covers admission of guilt If client confessions, but pleads NOT guilty, L:  May cease to act – IF enough time for another to take over case properly before hearing and client doesn’t insist on L continuing to rep.  May continue to act – if so: o Must not falsely suggest another person committed offence. o Must not set up affirmative case inconsistent with confession. o May argue evidence insufficient or law does not prove guilt. Advocate’s role in sentencing If pros fails to mention prior conviction in sentencing? (A get lighter sentence cos 1 st conviction)  AR29 – failure to disclose NOT considered “misleading” Ct, BUT cannot say anything contrary (eg. claim client has not prior conviction)  AR30 – Defence must not ask a pros Wit about priors (if Def knows/suspects Wit unaware and will say no priors)  Basically, can remain silent BUT MUST NOT falsely state client has no prior record. Other court issues Family law proceedings – CHILD’S INTERESTS over CLIENT  s60CA Family Law Act 1975 (Cth) – best interests of child paramount consideration.  Clarkson v Clarkson (1972) 19 FLR 112 at p114: lawyer must put C’s interest ABOVE client! Must call relevant evidence Ex parte proceedings – duty to positively assist Ct  AR24 – L must disclose all matters:  In L’s knowledge,  Not protected by legal prof priv,  L has reasonable grounds to believe would support argument AGAINST own client  AR24A: if info against own client and under legal prof priv:  Must seek client’s instructions to waive priv; OR  If client refuses –  inform client re client’s responsibility to auth disclosure and consequences if not  inform Ct that L cannot promise Ct knows everything that should be disclosed