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.

Footnotes

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.

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