Week 10 - Duty to the Court and Others Flashcards
(39 cards)
ASCR Rule 19
Candour must be shown to:
→ Any binding authority
→ Any binding authority decided by the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court
→ Any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court which has not been disproved; or
Any applicable legislation; which the practitioner has reasonable grounds to believe to be directly point, against the client’s case
Copeland v Smith [2000] 1 WLR 137
approached the matter as though it was free from any binding authority knowingly
ASCR r 21
Council of the NSW Bar Association v Hart [2011] NSWCA 64
→ Solicitor told the magistrate that his client was working and living at Oakdale. He asked for the matter to be transferred to Camden Local Court
→ But the solicitor knew his client was living in Bondi and working in North Ryde. The solicitor told his client, for the purposes of court proceedings, he should say that his address in Oakdale
→ At the time the solicitor made the statement he knew it to be false. He intended to mislead the Court because he considered that he could achieve a more favourable result for his client.
Found not to be a fit and proper person to remain on the Roll.
Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115
The legal practitioner presented to the court a trust deed as part of the defence for his clients. The legal practitioner had intentionally created the impression one of his clients had signed the deed when knew that she had not. The legal practitioner was aware that the signature had been forged by her husband. The court said, “the practitioner in this case, failed in his overriding duty to the Court not to mislead it”
Legal Profession Complaints Committee v Bower (2019) WASC 281
→ A solicitor misled both his client and the court about the true reason behind delays in two matters
→ The solicitor claimed he couldn’t comply with a court direction to file pleadings as directed because of his cleints delay, when in fact, the inacitivity was his fault
→ He filed false affadavits knowingly containing untrue statements to mislead the court
ASCR r 32
ASCR r 34
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
“Where parties are dealing at arms’ length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice”
→ Generally there is no affirmative duty to disclose factual information that may be against your clients’ interests
→ Exceptions:
- If there is a special relationship between the parties
- When one omits to mention a qualification ‘in the absence of which some absolute statement made is rendered misleading’
When a statement which was true at the time it was made, has subsequently become false
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
“Silence is to be assessed as a circumstance like any other … the question is simply whether, having regard to all the relevant circumstances, there has beeen conduct that is misleading or deceptive or that is likely to mislead or deceive … the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expecatation, in the circumstances of the case, tha t if particular matters exist they will be disclosed”
Hopeless Cases - Dejnorge v Dunn (No 2)
- First, you need a reasonable subjective belief that encompasses the next four elements. This isn’t just about what you personally think, but can be logically argued in an objective sense
- Second, your belief must have an objective foundation in material that was available to you at the relevant time. This doesn’t just mean admissbable evidence - it can include credible but not strictly admissible information
- Third, the material identified must constitute a proper basis for alleging each relevant fact
- Fourth, your legal argument must reflect a reasonable arguable view of the law
There must be reasonable prospects of damages being recovered - not necessarily as claimed, but some damages, however modest
Levick v Deputy Commissioner of Taxation (1999) FCAFC
“an ethical question arises where a solicitor or counsel advised their clients to pursue spurious arguments before the court”
ASCR r 21
Ridehalgh v Horsfield [1994] Ch 205
“It is, however, one thing for a legal representative to present, on instructions, a case which he regards are bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of court proceedings”
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157
“It is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it”
No conferring with witnesses
No coaching of witnesses
No communication in cross-examination
R v Shaw (1991) 57 A Crim R 425, 460 (Nathan J)
“eye witnesses to no belong to a camp, but are within the class of persons whom juries expect and are entitled to hear” i.e. no property in a witness
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Witnesses were conferred to rehearse stories
Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 536
Solicitor visited a witness to persuade her to give a different account of events
NSW Legal Services Commissioner v Leslie Elias Abboud [2021] NSWCATOD 23
Tried to conceal evidence
ASCR r 7.2
