Australia: Corresponding with the Court: Practitioner "Do's" & "Don'ts"

Last Updated: 8 May 2016
Article by Kathryn Howard and Alexandra Tighe

Most Read Contributor in Australia, August 2018

In the modern era of electronic communication, and with email such a practical and efficient means of communication with a Court, it is easy for a lawyer to unwittingly contravene the rules against improper communications with a Court.

A recent decision in the NSW Supreme Court delivers a timely reminder for lawyers about how and when it is appropriate to communicate with a Court by email.

In FAL Management Group Pty Ltd [2015] NSWSC 1035, McDougall J was scathing of a solicitor who sent an email to his Honour's Associate, without having first obtained the prior consent, or knowledge, of the other party to the proceeding.

In this case, the solicitor sent an email seeking orders for leave to serve subpoenas on short notice. The email set out submissions containing reasons why the subpoenas were required and contained contentious matters.

That the solicitor had copied the other party into the email to the Associate only rectified the deficiency of the lawyer by a "small and insignificant extent" in his Honour's view.

In his decision, his Honour stated:

It is not appropriate for a party to litigation, or its legal advisers, to communicate with the Court, except in very limited circumstances, without the prior knowledge and consent of the other party to that litigation.

His Honour cited the practice of communications with the Court containing matters related to substantive issues as "intolerable" and invited submissions from the solicitor concerned as to why his Honour should not refer the correspondence to the Legal Services Commissioner for investigation.

Ultimately his Honour did not make the referral to the Commissioner, but the mere threat to do so reinforces the importance for lawyers to exercise extreme care when communicating with a Court.

The underlying principle is that, whilst communication between lawyers and Associates is necessary for the smooth running of the Court, the impartiality and integrity of the Court must not be undermined in such exchanges1.

A practitioner's overriding duty, and a core ethical obligation of practise, is a duty to respect the Court and to ensure its impartiality. Even the most innocuous and well-intended email from a lawyer to an Associate may give rise to an allegation that the party has attempted to influence the conduct or outcome of the case before the Judge.

It can be difficult for lawyers to determine whether a matter in an email to an Associate is procedural or substantive. This is particularly the case in a number of jurisdictions which operate Judge managed lists or docket systems, where it is the practice of the Judge to take an active role in the preliminary interlocutory steps before trial. It is common for Judges to receive affidavits and bundles of materials for tender in advance of a hearing or interlocutory application, which the Judge will often read in advance of the parties' appearance to expedite the administration of justice. The danger with this practice is that much of that material may never be tested in open Court or make its way into evidence, and yet it has come to the Judges attention and he or she is then impugned with that knowledge.

The Commercial Court of the Victorian Supreme Court Practice Note (No 6 of 2009) provides a helpful guide on the sorts of matters that lawyers should avoid enquiring about (even with the consent of your opponent):

  1. Whether the Judge is likely to adjourn the matter on the papers;
  2. The timeframe within which the Judge is listing matters for trial;
  3. Whether the proceeding will be given an early trial date, within a specified timeframe or before the completion of pre-trial steps; or
  4. Whether the Judge will find another Judge to hear the matter at an early date.

The Supreme Court considers these queries should be made of the Judge in open Court with all parties present.

To emphasise the importance of ensuring your communication with the Court is properly made, possible consequences for failure to exercise caution when emailing an Associate include:

  1. An application for the Judge to recuse him or herself on the grounds of reasonable apprehension of bias on the part of the Judge2;
  2. Possible findings of professional misconduct, and/or potential investigation by the relevant Legal Services Commissioner in your State3;
  3. Risk of finding of contempt of Court4; and/or
  4. Risk of costs consequences against you personally[5];

Some Golden Rules:

  • DO contact all parties to the litigation and advise them of your intended email communication.
  • DO make sure that your communication is open and uncontroversial.
  • DO give the other parties a draft of the actual wording you propose to forward to the Associate.
  • DO provide the other parties the opportunity to consent to the proposed email before it is sent.
  • DON'T just send the email anyway if your opponent refuses to consent to it.
  • DON'T attach submissions about why the orders are sought if you have not received the prior consent of the other parties to do so.
  • DO keep your email to procedural matters only (such as having the matter listed for urgent directions) if another party won't provide their consent to the communication being sent as drafted.
  • DO exercise extreme caution when emailing an Associate on an ex-parte or unrepresented litigant matters.
  • DON'T email an Associate just to inform that another party has failed to comply with the Court's orders or seek to 'point score' against your opponent.
  • DON'T allow the Associate to become part of the dispute.
  • DON'T be lulled into a false sense of security bythinking that just by copying the email to the Associate to all other parties you have discharged your obligations.
  • DO copy all parties into your email when you send it.
  • DO inform the Associate that the other parties have provided consent to the communication.
  • DO exercise courtesy and civility in all communications with the Associate and other parties.


1 R v Fisher [2009] VSCA 100; Supreme Court of Victoria, Commercial Court, Practice Note 6/2009

2 John Holland Rail Pty Ltd v Comcare [2001] FCAFC 34; R v Fisher (2009) VR 343

3 FAI Management Group; John Holland Rail

4 Re JRL; Ex Parte CJL (1986) 161 CLR 342

5 Federal Court Act: s 37N and corresponding State Civil Procedure Acts and The Uniform Civil Procedure Rules

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions