Issue 83: Sep 2018
Practice Case Note:

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by Adrian Duffy QC 

CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1241

In this case, Charlesworth J had before her for consideration whether Rule 4.03 of the Federal Court Rules 2011 required a barrister, acting on a direct access brief, to file a notice of acting.

Rule 4.03 provides:

4.03 Appointment of a lawyer—notice of acting

If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

Note: File is defined in the Dictionary as meaning file and serve.

The question arose in migration proceedings in which the applicant was not represented by any lawyer when the proceeding commenced but subsequently came to be represented by a barrister acting on a direct access brief. The barrister had not filed a notice pursuant to Rule 4.03. The Bar Association of New South Wales intervened on an application by the barrister for a declaration that such a notice was not required.

The Association argued, inter alia, that Rule 13 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) gave rise to an inconsistency with Rule 4.03. The Barristers’ Rule provided:

13. A barrister must not …

(d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate;

(e) be the address for service of any document or accept service of any document;

(f) commence proceedings or file (other than file in court) or serve any process of any court;

Plainly enough, if Rule 4.03 did oblige a barrister in the circumstances to file a notice of acting, there was a potential inconsistency such as to invoke the operation of section 109 of the Constitution, with the effect that relevant section of the State delegated legislation (the Barristers Rules) would be invalidated.

Her Honour found, after detailed consideration of the context of the Rules and their purpose, that Rule 4.03 did not operate to require a barrister acting on a direct access brief basis to file such a notice.

That did not, her Honour observed, mean that where a document was prepared by a barrister acting in such a matter, the obligation in Rule 2.16 did not apply. That Rule provides:

2.16 Details at foot of each document

(1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

(a) the name and role of the party on whose behalf the document is filed;

(b) the name of the person or lawyer responsible for preparation of the document;

(c) if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;

(d) if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;

(e) the address for service of the party.

Thus, where a barrister acting on a direct access brief prepares a document filed in a proceeding, there must be compliance with Rule 2.16 and the barrister’s name must appear accordingly.

Adrian Duffy QC