The lead singer of The Pogues – British born Shane MacGowan – died on 30 November 2023, aged 65, in Dublin, Ireland.
Without descending into the ups and downs of an eventful and turbulent life, MacGowan said in a 2020 interview that he has also been in drunk tanks on Christmas eve.
The classic – Fairytale Of New York – first released in 1987 – took the band over 2 years to write and was performed with Kirsty MacColl.
‘American Songwriter’ reports that Elvis Costello first suggested MacGowan write a Christmas duet that he could sing with The Pogues’ then-bassist Cait O’Riordan – who later married Costello.
MacGowan said the lyrics and imagery in “Fairytale Of New York” initially came to him in a state of delirium during a bout with double pneumonia and that he named the song after a 1973 novel, ‘Fairytale of New York’ by Irish-American author J.P. Donleavy.
The lyrics might be seen as a reflection of MacGowan’s rollercoaster life.
You were handsome, you were pretty, queen of New York City When the band finished playing, they howled out for more Sinatra was swinging, all the drunks, they were singing We kissed on a corner, then danced through the night
[Chorus: Shane Macgowan & Kirsty MacColl]
The boys of the NYPD choir were singing, “Galway Bay” And the bells were ringing out for Christmas Day
The Official Video
The link below is from the 2006 La Scala production by Zeffirelli.
Wikipedia describes Act 2, Scene 2 as follows:
The grand gate of the city of Thebes
Radamès returns victorious and the troops march into the city (Chorus, Ramfis: “Gloria all’Egitto, ad Iside” / Glory to Egypt, [and] to Isis!).
The Egyptian king decrees that on this day the triumphant Radamès may have anything he wishes. The Ethiopian captives are led onstage in chains, Amonasro among them. Aida immediately rushes to her father, who whispers to her to conceal his true identity as King of Ethiopia from the Egyptians. Amonasro deceptively proclaims to the Egyptians that the Ethiopian king (referring to himself) has been slain in battle. Aida, Amonasro, and the captured Ethiopians plead with the Egyptian King for mercy, but Ramfis and the Egyptian priests call for their death (Aida, Amneris, Radamès, The King, Amonasro, chorus: “Che veggo! .. Egli? .. Mio padre! .. Anch’io pugnai .. Struggi, o Re, queste ciurme feroci” / What do I see?.. Is it he? My father? .. Destroy, O King, these ferocious creatures).
Claiming the reward promised by the King of Egypt, Radamès pleads with him to spare the lives of the prisoners and to set them free. The King grants Radamès’ wish, and declares that he (Radamès) will be his (the King’s) successor and will marry the King’s daughter (Amneris). (Aida, Amneris, Radamès, Ramfis, The King, Amonasro, chorus: “O Re: pei sacri Numi! .. Gloria all’Egitto” / O King, by the sacred gods … Glory to Egypt!). At Ramfis’ suggestion to the King, Aida and Amonasro remain as hostages to ensure that the Ethiopians do not avenge their defeat.
This is truly spell bounding and uplifting.
Opera Australia is presently performing Aida at the Lyric Theatre, QPAC, Brisbane until 20 December 2023.
Here is Status Quo playing ‘Rockin’ All Over The World’ live as the opening song of the opening set of Live Aid on 13 July 1985 – the worldwide concert as organised by Sir Bob Geldof and Midge Ure that raised some £150m for victims of famine in Ethiopia.
This is at Wembley Stadium in London with 72,000 people. A concert was then held that day at John F. Kennedy Stadium in Philadelphia where 90,000 people attended. Wikipedia says: ‘On the same day, concerts inspired by the initiative were held in other countries, such as the Soviet Union, Canada, Japan, Yugoslavia, Austria, Australia, and West Germany. It was one of the largest satellite link-ups and television broadcasts of all time; an estimated audience of 1.9 billion, in 150 nations, watched the live broadcast, nearly 40 percent of the world population.’
The line ups were seriously star-studded, including Elton John, Queen, Madonna, Santana, Run DMC, Sade, Sting, Bryan Adams, the Beach Boys, Mick Jagger, David Bowie, Duran Duran, U2, the Who, Tom Petty, Neil Young and Eric Clapton. Francis Rossi lead singer and guitarist of Status Quo later sad “Bob told me, ‘It doesn’t matter a fuck what you sound like, just so long as you’re there.”
This a reminder of times when countries around the world made a true effort to work together for the common good.
Wikipedia says:
“exile” (stylized in all lowercase) is a song by American singer-songwriter Taylor Swift, featuring American band Bon Iver. It is the fourth track on Swift’s eighth studio album, Folklore, which was released on July 24, 2020. “exile” was written by Swift, Joe Alwyn (under the pseudonym William Bowery), and the band’s frontman Justin Vernon, with production by Aaron Dessner and Alwyn. Republic Records sent “exile” to US alternative radio stations on August 3, 2020.
Depicting an imaginary narrative of two estranged lovers having an unspoken dialogue, “exile” is a minimal, but cinematic, indie-folk ballad with gospel, orchestral and chamber pop elements, combining Swift’s honeyed vocals and Vernon’s deep baritone into a melancholic duet propelled by a plodding piano, swirling strings, and soaring harmonies. Upon release, “exile” garnered widespread critical acclaim, with emphasis on the duo’s vocal chemistry, the agonizing lyricism, rich instrumentals and bleak atmosphere. Music critics picked it as a standout on Folklore and named it one of Swift’s best collaborations to-date, comparing it to her 2012 single “Safe & Sound“. Several publications listed “exile” as one of the best songs of 2020.
Wikipedia includes the following in reviews:
The song received widespread critical acclaim upon release. E! Online‘s Billy Nilles described “exile” as a “devastating dream” that “hits like a punch to the gut”. Praising the song’s passion and conversational lyricism, Clash writer Valerie Magan called the song a “scintillating” duet and “a wintry, tortured monster of a song” that best showcases the “sonic beauty” of Folklore. Writing for Consequence of Sound, Matt Melis named “exile” the Song of the Week upon the album’s release, and called the duo’s pairing a “minor miracle in 2020”. Reviewing for the same publication, Katie Moulton stated that “exile” portrays a “dissolving” romance with two voices in counterpoint, and remarked the lyrics as “clever but restrained” with maturity, observing the song’s emotions to be “not only high-pitched” but possessing “complex, shifting depths”.
The performance below was produced during Covid, as was the album Folklore, and hence the ‘minor miracle’ reference above; it is:
Integrity of Evidence – Annotations to rules 68 – 74 of the Barristers’ Conduct Rules
Rule 68 – 74 of the Bar Association of Queensland – Barristers’ Conduct Rules relate to the integrity of evidence. These include such matters as the prohibition as against coaching: r.68(b), a witness can however be questioned and tested in conference: r.69, unless as provided for in r.71 (such as relating to undertakings to the court), a prohibition of conferring with more than one lay witness at a time: r.70, unless as expressly provided for (such as the prior consent of the opponent), a barrister must not confer with a witness while that witness remains in cross examination: r.72, unless as provided for in r.74 – not to prevent or discourage a witness from conferring with an opponent: r.73. The knowledge, understanding and compliance with these rules is critical in the practice of a barrister. To assist, below are some annotations with respect to rules 68 and 70.
Rule 68 provides:
A barrister must not:
a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
b. coach a witness by advising what answers the witness should give to questions which might be asked.
Overriding guidance with respect to dealing with witnesses is provide by rule 25 – the barrister’s overriding duty is to the Court and the administration of justice, and rule 26 – a barrister must not knowingly mislead the Court on any matter.
The text ‘Professional Responsibility and Legal Ethics in Queensland’ says with respect to r.68 BCR:[1]
The proscription extends to both giving a positive indication as to what evidence should be given and to a negative suggestion as to the undesirability of giving certain evidence, as well as to the advantages of selective forgetfulness.
That is not to say that a barrister should not prepare witnesses by, for example, simulating the giving of evidence or cross-examination. Such practices allow lay witnesses to become used to the forensic environment and enhance their ability to give evidence in a way which assists the court. Although examining the question in the civil context, Ipp J considered that there was “nothing improper in preparing witnesses this way. It is indeed desirable for lawyers to prepare witnesses, particularly those who give lengthy or complex evidence, for trial.”[2]
Indeed, a barrister would be derelict in his or her duty to the client if they failed to take advantage of the opportunity to gauge how a witness will respond in court, and to identify aspects of the evidence which require clarification.
The concept of coaching a witness is clear enough. In an 1880 New York disciplinary case ofIn re Eldridge[3] the judge said:
[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.
When considering the permitted professional boundaries involved in lawyers conferencing with any witness, Young J (as his Honour then was) said In Re Equiticorp Finance Ltd; Ex parte Brock:[4]
It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice. That advice may certainly include:
(1) advice that the witness should refresh his or her memory from contemporaneous documents;
(2) directing the witness’ mind to the point about which questions may be asked;
(3) giving the witness a sketch of court procedure;
(4) directing the witness’ attention to points in his or her evidence which appear to be contradictory or fantastic;
(5) reminding the witness to bring to court all relevant documents;
(6) advising the witness as to the manner of answering questions (for example, ‘In cross-examination listen to the question, just answer the question asked with as concise an answer as possible’); and
(7) giving advice as to appropriate dress and grooming.
There may be other permitted areas.
In the text ‘Cross on Evidence’, Heydon says on the role of the legal practitioner and the preparation of expert reports:[5]
…. It is legitimate for legal practitioners to identify the real issues for the expert, to indicate when the report fails to direct itself to the real issues, to point out obscurities and gaps in the reasoning, to indicate that the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on them, and to indicate that the report does not explain how the opinion is substantially based on the expert’s specialised knowledge.[6] …
The learned author of the text ‘Expert Evidence’[7] refers to the comments of McDougall J in Thiess Pty Ltd v Dobbins Contracting Pty Ltd:[8]
Lawyers must play an active, and important, part in the preparation of statements of expert evidence. First of all, the lawyers for a party who proposes to rely on expert evidence must inform the expert of the assumed facts on which his or her opinion is to be based. To enable the opinion to have any value, the statement of assumed facts (and of course, those facts include documents) must be comprehensive.
Next, the lawyers should do what they can to ensure that the expert expresses his or her opinions in a way that demonstrates clearly the application of specialised knowledge to those assumed facts and the reasoning process that leads to the opinions expressed. Of course, it is a matter for the expert, and only the expert, to formulate those opinions, and to employ an appropriate reasoning process in doing so. However, if the expert’s statement of evidence is to be of any real utility, the lawyers who have retained the expert must do what they can to ensure that the reasoning process is adequately displayed. In this case, the lawyers for both the plaintiffs and Mr Bate appeared to be either ignorant of, or uncaring as to, their responsibilities in this regard.
Coaching was also considered by Martin CJ in Majinski v State of Western Australia:[9]
Questioning of the witness moves beyond “proofing” to impermissible “coaching” when the witness’ true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness… A solicitor or counsel should not advise a witness as to how to answer a question… By way of example, in Day v Perisher Blue Pty Ltd the defendant’s solicitors prepared an extensive document for the defendant outlining “possible areas of questioning (to be passed onto the prospective witnesses)” and included suggestions as to appropriate responses which would be in line with the defendant’s case. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and “tainted” the defendant’s case.
Dal Pont says in his text ‘Lawyers’ Professional Responsibility’:[10]
The lawyer’s professional responsibility to a client dictates that he or she should prepare witnesses (including the client) for the type and manner of questioning, and not put a witness on the stand without knowing in advance how he or she will respond to vital questions.[11] The level of preparation is influenced by the experience of the witness.[12] Witness preparation of this kind can serve the efficient administration of justice and save time.[13]
The involvement of legal representatives in the preparation of expert reports was considered by Callinan J in Boland v Yates Property Corporation Pty Ltd, when his Honour said:[14]
… I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. …
Dalton J helpfully discussed the assistance that legal representatives can usefully provide in the process of the preparation of expert reports In Landel Pty v Ltd & Anor v Insurance Australia Limited [2021] QSC 247, when her Honour said:[15]
[19] First, while lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. Draft expert reports are disclosable so that the effect of any such input will be obvious to the other parties to the litigation – see r 212(2) and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board.
[20] In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.
[21] Any disciplined and structured conferences with Dr Macintosh would have revealed that there were faults in his opinions which went beyond matters of expression and presentation. They would have revealed significant contradictions, errors and gaps in reasoning in his reports. It is permissible for matters of substance like this to be drawn to an expert’s attention in conference with lawyers, and remedied if the expert is able and willing to do so. Again, coaching is not permitted, and drafts will be disclosable.
[22] The course of this proceeding shows the importance of attention to the reports of experts by the lawyers running the case, not just to achieve a comprehensible and rational expert opinion for use at the trial, but to evaluate the strength of the case sought to be advanced by the litigant. In this case, had early attention been paid to what reasoned opinion Dr Macintosh could give, the plaintiffs’ lawyers would have understood the weaknesses in their expert case at a stage of the litigation when there might still have been alternatives open to them. Instead, it appears that the only effort the plaintiffs’ lawyers made to come to terms with Dr Macintosh’s opinions was immediately prior to trial, by which time any such avenues were very limited. …
Rule 70 provides:
A barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time:
a. about any issue which there are reasonable grounds for the barrister to believe may be contentious at a hearing, and
b. where such conferral could affect evidence to be given by any of those witnesses,
unless the barrister believes on reasonable grounds that special circumstances require such a conference.
In Landel, Dalton J also said with respect to the necessity to confer with witnesses separately:[16]
…. However, I am critical of the defendant’s lawyers for meeting with both experts together. Lay witnesses should never discuss their evidence with each other. Experts see each other’s reports before trial, and sometimes there are Court-ordered conferences between expert witnesses. Here, where the plan apparently was to present two independent views to the Court, meeting with both experts together, particularly before they had committed their views to writing, obviously had the potential to compromise that independence.
In Day v Perisher Blue Pty Ltd Sheller JA observed:[17]
It has long been regarded as proper practice for legal practitioners to take proofs of evidence from law witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly with other witnesses. … In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper.
[1] By Corones, Stobbs and Thomas, 2nd ed, 2014, says at para [12.60], pages 457 – 458.
[2] Justice D A Ipp, “Reforms to the Adversarial System in Civil Litigation – Part II” (1995) 69 Australian Law Journal790 at 799.
[3]In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880), cited at fn., 4 in Wydick R. C. ‘The Ethics of Witness Coaching’ Cardozo Law Review (1995) 1, 17, 1.
[4] (1992) 27 NSWLR 391 per Young J at 395. These comments of Young J were referred in the article by Declan Kelly SC (now Justice Kelly) and Dan Butler, “Ethical Considerations in Dealing with Experts”, BAQ Seminar 1 December 2010 and ‘Hearsay’ dated 24 February 2011. This paper also considered the Australian and UK positions with respect to the permissible limits of the involvement of lawyers in the preparation of expert reports, as did the paper by Blake SC and Gray in ‘Can Counsel Settle Reports’ (2013) 119 Precedent 16 – 20.
[6] See Phosphate Co-operative Co of Australia Ltd v Shears (No 3) (Pivot case) [1989] VR 665 at 680; Vernon v Bosley (No 2) [1999] QB 18 at 56-60; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [16] and [19]-[21]; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 at [227]-[231] R v Doogan (2005) 158 ACTR 1 at [119] …
[7] By Ian Freckleton QC, 6th ed, 2019, paragraph [5.10.360], page 316.
[8] [2016] NSWSC 265 (17 March 2016) at [21] – [22].
[10] 7th ed, Law Book Co 2021, paragraph [17.165], page 602.
[11] R v Chapman (1958) 26 WWR 385 at 393 per O’Halloran JA.
[12] R v Noble (2000) 117 A Crim R 541 at [19] per Pinucs JA.
[13] See Applegate, “Witness Preparation” (1989) 68 Tex L Rev 277. It has been noted, to this end, that witness preparation is in line with the rules noted at [17.250], which require limiting evidence to issues genuinely in dispute and taking up as little as possible of the court’s time: Legg, “Preparing Witnesses Effectively” (2003) 41 (Dec) LSJ 60.
[14] [1999] HCA 64 at [279]; 74 ALJR 209; 167 ALR 575 (9 December 1999)
[17]Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 at [30].
Rule 25 – 36 of the Bar Association of Queensland – Barristers’ Conduct Rules relate to the duties owed to the Court. These include such matters as acting with independence in the interest of the administration of justice: r.25, not deceiving or knowingly or recklessly misleading the Court: r.26, making concessions with regards to the opponent’s evidence, case law or legislation: r.28, ex-parte applications: r.29, advising the Court of binding authority and applicable legislation that is on point and against the client’s case: r.31, and informing the Court of any misapprehension that it may hold as to the effect of an order: r.36. The understanding and prudent application of such matters is fundamental to the practice of a barrister. To assist, below are some annotations with respect to a number of these rules.
Rule 25 – Act with independence in the interests of the administration of justice
A barrister’s duty to the court is paramount and must be performed even though to do so is contrary to the interests or wishes of the client[1]. The barrister can do nothing that would obstruct the administration of justice by:
(a) deceiving the court;
(b) withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas;
(c) abusing the process of the court by preparing or arguing unmeritorious applications;
(d) wasting the court’s time by prolix or irrelevant arguments;
(e) coaching clients or witnesses as to the evidence they should give; or
(f) using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.[2]
Westlaw (Thomson Reuters) in ‘The Laws of Australia’ says:[3]
A barrister owes a duty to the court … to conduct litigation with due propriety.
Absolute probity is required of both solicitors and barristers. All advocates owe a duty to the court to assist in ensuring the proper administration of justice.[4] …
Counsel’s overriding duty to the court influences whether a particular witness will or will not be called or whether or not a particular question will or will not be asked.[5] By reason of counsel’s paramount duty, the court must not be misled, unjustifiable aspersions should not be cast on any party or witness, and documents or authorities which detract from the client’s case should not be withheld. The paramountcy of the duty to the court requires that it apply even if the client gives instructions to the contrary.[6]
In the ‘Solicitors Manual’ (LexisNexis), Dal Pont says:[7]
The administration of justice depends, and the court relies, on the faithful exercise by lawyers of an independent judgment in conducting and managing litigation. Thomas J explained the point in Kooky Garments Ltd v Charlton as follows:[8]
The court is entitled to assume that solicitors and counsel appearing before it possess that independence … As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called into question … [The integrity of the judicial process] is undermined if solicitors or counsel [do not] possess the objectivity and independence which their professional responsibilities and obligations to the court require … of them.
Dal Pont says further in the Solicitors Manual:[9]
A lawyer must not mislead the court as to law. As both a participant and an assistant to the court in the administration of justice, he or she “must do what they can to ensure that the law is applied correctly to the case”.[10] Candour in the presentation of the law has, to this end, various aspects, including the following:
• a duty not to misrepresent the law;
• awareness and understanding of the applicable law and procedure;
• a duty to bring to the court’s attention relevant authority, whether for or against the client’s cause[11];
• a duty to assist the court or judicial officer in understanding and applying the law.
In his seminal article, ‘Lawyers’ Duties to the Court’[12], Justice Ipp classified the duties under four categories:
(a) the general duty of disclosure owed to the court;
(b) the general duty not to abuse the court’s process;
(c) the general duty not to corrupt the administration of justice; and
(d) the general duty to conduct cases efficiently and expeditiously.
The first three are said to derive from the public interest that dishonest, obstructive or inefficient practices not destroy the administration of justice.[13] The fourth duty reflects current community attitudes and standards[14].
A barrister’s duty is personal and, where junior and senior counsel appear, the court is entitled to expect that each counsel is responsible for the preparation and presentation of the client’s case[15].
Dal Pont says further in the text ‘Professional Responsibility and Legal Ethics in Queensland’[16]:
There is authority that a practitioner should exercise a degree of mild scepticism to a client’s narrative. If in doubt about the truth of the client’s instructions, the practitioner should press the client, and if significant suspicion that the court is to be mislead persists, then the practitioner should withdraw from the case: see Kavia Holdings Pty Ltd v Werncog Pty Ltd.[17] Santow J observed in that matter that:
[W]hether and how far legal professional privilege would then preclude disclosure to the Court, perhaps in very general terms, of the reason for ceasing to act, is a question for the future. Absence of that minimal disclosure leaves the Court at risk of being misled by the recalcitrant party and its new and potentially uniformed legal advisors.[18]
In the context of modern principles of case management, it has been said that it is no longer open to counsel to argue every point indiscriminately; rather, the paramount duty to the court is to advance only points that are reasonably arguable[19]. In Giannarelli v. Wraith[20] Mason C.J. said[21]:
“A barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down every burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of [an] independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.”[22]
This does not mean that counsel must determine which points are likely to succeed and refrain from presenting or arguing any others (although that might be excellent advocacy); on the other hand, it does mean that counsel must determine which points are reasonably arguable, and must jettison the rest. This approach is not radically different to what has been said in past times, it merely requires counsel not to waste public resources on points that are in his judgment bound to fail.
On the other hand, in dealing with the situation of the “hopeless case”, his Honour expressed the view that if counsel could not “form the certain opinion” that the case was hopeless, and informs the client of the risk involved, advises the client most strongly not to proceed, and the client still insists on going on (without having any ulterior motive), counsel would commit no breach in taking those instructions[24].
The Full Court of the Federal Court in Dyczynski v Gibson[25] summarised the position, after quoting from Mason CJ’s judgment in Giannarelli, as follows[26]:
Counsel have a duty to assist the court “by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner”: Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 at 453; [1992] 2 All ER 486 at 493.
Thus it may be accepted that the performance of the duty to exercise an independent judgment as to the manner in which a retainer is performed is not to be confined by instructions from the client. The client does not instruct counsel as to how to undertake the professional obligations regarding the conduct of a case in court, including by confining the case where considered appropriate. Indeed, a client is not able to provide instructions that require a lawyer to fail to exercise the independent forensic judgment required to perform the obligations we have described. It would be an abuse of process for a client to seek to direct a lawyer to act contrary to those professional obligations and instead to act only at the direction of the client rather than by exercising independent professional judgment. The administration of justice by the courts depends to a considerable degree upon lawyers conforming to their obligation to exercise independent judgement as to all forensic decisions in executing the overall instructions of the client. It is for those reasons that it is said that the duty to the court is paramount and those duties must be complied with even though to do so may be contrary to the interests or wishes of the client: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [111]-[113] (McHugh J). Properly understood, a client has no interest recognised by the law in being able to instruct a lawyer to act contrary to the obligation to exercise an independent forensic judgment in fulfilment of the duty to the court to do so. Modern principles of case management give effect to these duties by facilitating a collaborative approach to refining issues by eliminating vagueness, imprecision, kitchen sinks, boilerplate and dross.
Relatedly, “it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable”: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24]. But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [92(c)] (McColl JA, with whom Hodgson and Ipp JJA agreed). For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated: Ridehalgh v Horsefield [1994] Ch 205 at 234. The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.
All of those principles sit alongside the fundamental obligation of lawyers to carry out the instructions which they are retained to perform. When it comes to disputes, those instructions will be to sue, to defend, to mediate, to arbitrate, to conciliate, to appeal, to compromise, to enforce a judgment, to petition for bankruptcy and the like. It is not for a lawyer, holding those instructions, to decide not to carry them into effect based upon a view as to whether there is a basis to do so and thereby repudiate the terms of the lawyer’s retainer. And that is the contention that lies at the base of Mr Barry and Mr Rowe’s submission.
Rather, a lawyer who forms the view that there is no proper basis to carry out the instructions or no reasonably arguable position to advance must terminate the retainer on that basis. The client may then seek other advice or choose to act in person. While the retainer is on foot a lawyer has no authority to abandon it by, for example, conceding a case as happened in the present case. Further, it is not for lawyers to act without consulting and conferring with their clients (or barristers with their instructing solicitors) about the course they are proposing to take. Clients are entitled to have the proceedings explained to them. So far as circumstances allow, clients are also entitled to have their instructions obtained regarding significant aspects of carrying out the retainer and to have those views considered before lawyers perform their obligation to exercise their independent forensic judgment.
Rule 26 – Not deceive or knowingly or recklessly mislead the Court
At common law, counsel is under a duty not to ‘keep back from the court any information which ought to be before it’ and counsel ‘must in no way mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or knowingly permit a client to attempt to deceive the court’[27].
The duty not to mislead the court was considered by the Victorian Court of Appeal in Forster v Legal Services Board[28]. Kyrou AJA (Weinberg and Harper JJA agreeing) said[29]:
In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the court and thereby breach his or her duty to the court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.
Misleading the court by presenting a misleading or false document is contrary to the lawyer’s duty of honesty and candour, including in his or her capacity as a litigant. In Law Society of New South Wales v Foreman, the New South Wales Court of Appeal ordered that the respondent be removed from the Roll of practitioners, because she had knowingly presented a falsified document to the court on the basis that it was genuine. Mahoney JA stated that:
A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366at 382 and 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.
In Myers v Elman, Viscount Maugham said that: “A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record.“ Similarly, in Foreman, Giles AJA stated that the respondent’s failure to reveal and correct the conduct by which the court had been misled, compounded the unacceptable conduct involved in preparing the falsified document.
The ‘Solicitors Manual’ (LexisNexis) by Dal Pont says:
As an officer of the court … which involves assisting the court in the administration of justice — the lawyer must be able to command both the confidence and the respect of the court.[30] The court can hardly have confidence in an assistant that is not duty bound, and who does not exercise the duty, to be honest and candid with the court.[31]
Dal Pont in his text “Lawyers’ Professional Responsibility”[32], refers to the comments of Parker J in Kyle v Legal Practitioners Complaints Committee[33]:
The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of counsel or of those whom the counsel represents. No instructions of a client, no degree of corner for the client’s interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwaverable observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.
Further, Dal Pont says:
….. wilfully misleading the court has been judicially described as “outrageously dishonourable” and, as such, deserving of severe disciplinary action.[34]
With reference to solicitors, Atkinson J said in Perpetual Trustee Company Limited v Cowley & Anor[2010] QSC 65:
[17] A legal practitioner’s duty to the court and therefore to the public administration of justice imposes duties of honesty, candour and integrity. A legal practitioner may not intentionally mislead the court. If it comes to the legal practitioner’s attention that the he or she has unintentionally misled the court then the duty of the legal practitioner is to inform the court to correct the error. As Viscount Maugham said in Myers v Elman:[35]
“A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes to the court to put the matter right at the earliest date, if he continues to act as solicitor upon the record.”
The ‘Solicitors Manual’ (LexisNexis) by Dal Pont says:[36]
As a general principle, defence lawyers have no duty to disclose to the court material adverse to the client’s interests of which the prosecution is unaware, and in fact should not do so unless instructed by the client[37] … although the lawyer is not bound to disclose the client’s previous convictions, “he must not suggest that his client is a man of good character”.[38]
While there is no obligation on counsel to assist an opponent, counsel must be careful to ensure that the court is not misled. There is a distinction between actively misleading and passively standing by and watching the court be misled. Lord Diplock in Saif Ali v Sydney Mitchell & Co[39] said, at p. 220:
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.
Stuart-Smith LJ in Vernon v Bosley (No 2)[40] discussed the distinction and said:
In Tombling v. Universal Bulb Co. Ltd. [1951] 2 T.L.R. 289, 297 Denning L.J. said:
“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 in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it comes to his speech, he must put every fair argument which appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty.”
The classic examples of the distinction is the case where the barrister knows that his client has previous convictions, but the court and prosecution do not. He is not under an obligation to disclose the convictions, but he must not suggest that his client is a man of good character. Similarly there may be several witnesses who can speak as to a certain matter of fact. Some may support one side, the others the opposite case. Neither the litigant nor his lawyers are bound to call in a civil case those witnesses who do not support their case.
But where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto.
Rule 27 – Correct any misleading statement
Dal Pont in his text “Lawyers’ Professional Responsibility”[41] refers to the decision of Vernon v Bosley (No 2)[42], and the comments in the same by Stuart-Smith LJ as follows:
[W]here the case has been conducted on the basis of certain material facts which are an essential part of the party’s case… which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of [the] case[43].
Dal Pont also refers to half-truth’s and says as follows:[44]
Lawyers must eschew statements or conduct that are half-truths, or otherwise leave the court with an incorrect impression. The observations of Cullen CJ in Re Thom are instructive in this context:[45]
It is perhaps easy by casuistical reasoning to reconcile one’s mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.
Rule 29 – Full disclosure in ex parte applications
Justice Gageler made the following observation in Aristocrat Technologies Australia Pty Ltd v Allam[46]:
[15] It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested. (emphasis added; footnotes omitted)
In Mineralogy Pty Ltd & Anor v The State of Western Australia[47] Martin J provided a detailed review of this topic when his Honour said, inter alia:
[86] A court will be astute to deprive an applicant of any advantage it may have obtained by proceeding ex parte without disclosing all material facts to the court. The duty to disclose must be complied with “on pain of a penalty that the order will be set aside.”[48]
[87] In Garrard v Email Furniture Pty Ltd (“Garrard”),[49]Mahoney AP expressed the consequences of a failure to comply with the duty in this way:
“It is, in my opinion, important that the extent of the duty (“a most serious responsibility”) imposed upon a person applying to a court ex parte be not qualified and that failure to observe that duty be properly sanctioned. … The court should set aside an order or certificate obtained in breach of the rule and should do so with costs. If the party be entitled to the relief following full disclosure, the relief may be obtained upon a subsequent and a proper application.”[50] (emphasis added)
[88] The attitude evinced by courts about the consequences of inadequate disclosure was summarised by Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam[51]…
[89] Garrard was followed by Applegarth J in Heartwood Architectural Timber and Joinery Pty Ltd v Redchip Lawyers,[52] where his Honour said:
[32] … An ex parte order that is obtained in breach of the duty of disclosure is liable to be discharged without a hearing on the merits. The respondent is prima facie entitled to its discharge. An applicant can apply for a new order. In that regard, some courts have adopted a less severe approach than others. The rationale for the necessity to discharge an order made in the absence of full disclosure was stated in Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd:
‘The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts.
The principle applies to an application to discharge or dissolve an ex parte interim injunction; the discharge of that injunction does not prevent a fresh application being heard and determined in the light of all relevant facts.’
Accordingly, an aggrieved party which applies to discharge an ex parte injunction that was obtained without full disclosure is prima facie entitled to have the injunction discharged even if the Court takes the view that the order would probably have been made even if there had been full disclosure. The merits of the applicant’s case for a freezing order may be relevant to the discretion to grant a new order.” (citations omitted, emphasis added) ….
[92] That the court turns its face against an applicant that has failed to adequately discharge its duty has been made clear. In the usual case, such an applicant will be required to bring a new application. This was recognised as long ago as 1835 when, in Attorney-General v Mayor of Liverpool,[53] Pepys MR said:
“A very wholesome rule, it is true, has been established in this Court; that if a party comes for an ex parte injunction, and misrepresents the facts of the case, he shall not then be permitted to support the injunction by shewing another state of circumstances in which he would be entitled to it: because the jurisdiction of the Court in granting ex parte injunctions is obviously a very hazardous one, and one which, though often used to preserve property, may be often used to the injury of others; and it is right that a strict hand should be held over those who come with such applications.”[54]
In Queensland, the Full Court in Re South Downs Packers Pty Ltd[55] has said that a non-disclosure will not be material unless it is likely to influence the Court in acceding to the application. Elsewhere, the question of what was a material fact, was considered in Savcor Pty Ltd v Cathodic Protection International APS[56]: to be material, it would have to be a matter of substance in the decision-making process.
The Supreme Court of Queensland[57] has also adopted the following succinct description of what a party applying ex parte must do by Allsop J (as his Honour then was) in Walter Raue Neusser Oel Und Fett AG v Cross Pacific Trading Pty Ltd[58], as follows:
That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not misstating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.
Dal Pont says in his text “Lawyers’ Professional Responsibility” with respect disclosure on ex parte applications[59]:
The unique nature of ex parte applications in an adversarial system demands especial candour on behalf of applicants to avoid an abuse of the court’s processes. An ex parte applicant, to fulfil this duty, must supply “the place of the absent party to the extent of bringing forward all material facts which that party would presumably have brought forward in his defence to that application”.[60] Lawyers on ex parte applications must, therefore, display the utmost fairness and good faith, and see that all relevant matters, for and against the application, are brought to the court’s attention.[61]
Rule 31 – Inform the court of binding authorities
In D’Orta-Ekenaike v Victorian Legal Aid[62], McHugh J said[63]:
Moreover, the advocate owes a duty to the court to inform it of legal authorities that “bear one way or the other upon matters under debate”. The duty applies “quite irrespective of whether or not the particular authority assists the party which is so aware of it. (citations omitted)
In the ‘Solicitors Manual’ (LexisNexis) Dal Pont says:[64]
The overriding duty to the court dictates that a lawyer cannot simply ignore case law or legislation that is contrary to his or her client’s cause.[65] In the usual case, the opposing lawyer will bring such case authority or legislation to the court’s attention, but failing this the court should be informed of that authority or legislation. Otherwise, it may proceed to reach the incorrect conclusion, or adopt reasoning that has been previously decreed to be suspect.
As Justice Ipp noted in his seminal article, Lawyers’ Duties to the Court[66], in criminal sentencing, it is incumbent on counsel on both sides to make themselves aware of the relevant law, however difficult that may be, and to ensure that the judge is passing a sentence which is one within the judge’s jurisdiction to pass. More generally, it is the duty of both counsel to inform themselves of the extent of the court’s powers in any case in which they are instructed, to know what options are available to the trial judge and to correct the judge if he or she were to make a mistake[67].
The text ‘Professional Responsibility and Legal Ethics in Queensland’, by Corones, Stobbs, and Thomas, says:[68]
Both the general law and the relevant professional rules require practitioners to act with candour in the presentation of the law and of the facts relevant to proceedings. This means that practitioners must not, of course, misrepresent the law to the court. It also means that they have a duty to assist the court. This duty requires that advocates need to familiarise themselves with all the relevant primary authorities in relation to the relevant points of law in a matter for the purposes of both properly discharging their duty to their clients, and also to reduce the chances of judicial error. To not bring to the attention of the court a relevant (and especially a binding) authority could also constitute an appealable legal error and an abuse of court process if done knowingly….
Dal Pont cites Copeland v Smith[69] in this regard, where Brooke L J said:
“The English system of justice has always been dependant on the quality of the assistance advocates give to the bench…English judges are almost invariably in a position to give judgment at the end of a straightforward hearing without having to do their own research… because they can [rely] on advocates to show them the law they need to apply.
ASCR, rr 17 – 34 deal with issues of honesty, candour and frankness in relation to advocates…
A link to the BAQ Barristers’ Conduct Rules can be found here.
[1] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755; [2005] HCA 12, [111] (McHugh J). See also Giannarelli v Wraith (1988) 165 CLR 543; 62 ALJR 611, 555 (Mason CJ) (CLR); Orchard v South Eastern Electricity Board [1987] 1 QB 565; [1987] 2 WLR 102 (CA). See also Dal Pont GE, Lawyers’ Professional Responsibility (Lawbook Co., 4th ed, 2010) Ch 17. See also rules 5(a) and 5(d).
[2] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 79 ALJR 755; [2005] HCA 12, [111] (McHugh J)
[4] Abse v Smith [1986] QB 536; [1986] 2 WLR 322 (CA), 545–546 (Donaldson MR) (QB).
[5] Swinfen v Lord Chelmsford (1860) 5 Hurl & N 890; 157 ER 1436, cited with approval in Giannarelli v Wraith (1988) 165 CLR 543; 62 ALJR 611, 555–556 (Mason CJ) (CLR).
[8] Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590. Thomas J’s observations were adopted by Mandie J in Grimwade v Meagher [1995] 1 VR 446 at 452.
[12] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63
[13] Wallersteiner v Moir (No,2) [1975] QB 373 at 402 per Buckley LJ, where the duty was described as a ‘duty to the court to ensure that his client’s case, which he must, of course, present and conduct with the utmost care of his client’s interests, is also presented and conducted with scrupulous fairness and integrity’. See also Myers v Elman [1940] AC 282 at 319
[14] In the context of civil litigation, see rule 5 of the Uniform Civil Procedure Rules 1999 (Qld)
[15] Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd (No 8) [2014] VSC 567 at [135] per Dixon J
[16] 2nd ed, Law Book Co 2014, paragraph [11.50], page 436.
[18] Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 at [2] per Santow J. See also D Shirvington, “Going behind Clients’ instructions” (1998) 36 Law Society Journal 32 and DA Ipp, “Lawyers duties to the court” (1998) 114 Law Quarterly Review 63 at 67.
[19] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 99-100
[22] Justice Ipp noted that these remarks echo what was said by the High Court of Australia some 15 years earlier in Richardson v The Queen (1974) 131 C.L.R. 116 at n. 123, namely “Counsel have a responsibility to the court not to use public time in the pursuit of submissions which are really unarguable”.
[23] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 100-101
[24] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63 at 85-86
[26] [2020] FCAFC 120; (2020) 280 FCR 583 at [216]-[220] per Murphy and Colvin JJ
[27] Re Gruzman: Ex parte the Prothonotary (1968) 70 SR (NSW) 316 , 323 . See also Meek v Fleming [1961] 2 QB 366 , and the discussion by John Dixon J of the lawyers’ duty to the court at common law in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567 , [160]–[175]
[30] Re Davis (1947) 75 CLR 409 at 420; [1948] 1 ALR 41; BC4700540 per Dixon J; Re Evatt (1967) 67 SR (NSW) 236 at 245 (CA); Re Gruzman (1968) 70 SR (NSW) 316 at 323(CA); Re B [1981] 2 NSWLR 372 at 381–2 per Moffitt P; New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193 at 204 per Kirby P (“a special role in the administration of justice”).
[31] Re Foster (1950) 50 SR (NSW) 149 at 152 per Street CJ; New South Wales Bar Association v Thomas (No 2)
(1989) 18 NSWLR 193 at 204 per Kirby P; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56; [1999] WASCA 115 ; BC9904552 at [12]–[14] per Ipp J; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [53] per McColl JA (“It is impossible to understate the confidence which the courts must be able to place in the candour of those legal practitioners who appear before them”).
[32] 7th ed, Law Book Co 2021, paragraph [17.95], pages 587 – 588.
[34]Re Cooke (1889) 5 TLR 407 at 408 per Lord Esher MR; O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230 per Clarke JA; Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at 58 per Ipp J.
[45]Re Thom (1918) 18 SR (NSW) 70 at 74 – 75. See also Forster v Legal Services Board (2013) 40 VR 587 at [161], [162] per Kyrou AJA, with whom Weinberg and Harper JJA concurred; Harle v McGarvie [2015] VSC 697 at [91] – [93] per Zammit J; Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1 at [214], [215] per Blue J, at [427] – [436] per Stanley J (revd but not on this point: Clone Pty Ltd v Players Pty Ltd (recs and mgrs. Appt) (in liq) (2018) 264 CLR 165).
[54] Attorney-General v Mayor of Liverpool [1835] EngR 1042; (1835) 1 My & Cr 171 at 210-211[1835] EngR 1042; , (1835) 40 ER 342 at 355-356. Considered in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 682-683. Followed in Iqnet Pty Ltd v Schleeman [2001] WASC 236. Not everything that Pepys MR said still holds true, eg, that the “Court … is bound to know every clause in every Act that ever passed”. He did describe that, though, as “a degree of knowledge hardly to be hoped for.”
[59] 7th ed, Law Book Co 2021, paragraph [17.120], pages 592.
[60]Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682 per Isaacs J. See also Rybak v Langbar International Ltd [2011] PNLR 16 at [18] – [20] per Morgan J; Williams v Kim Management Pty Ltd [2013] 1 Qd R 387 at [47] – [53] per Dalton J.
[61] See Lord Esher MR in Re Cooke (1889) 5 TLR 407 at 409.
[65] Rondel v Worsley [1969] 1 AC 191 at 227–8 ; [1967] 3 All ER 993 per Lord Reid; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 ; 79 ALJR 755; BC200500919 at [112] per McHugh J.
[66] DA Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 LQR 63
Consider this scenario: On a Monday morning you, as counsel, receive a call from one of your frequent briefing solicitors who advises their client, in respect of whose interests you had been briefed and provided written advice over the previous 12 months, has been contacted by hackers saying that they have gained access, by hacking your IT system, to the client’s documents (briefed to you) and your advices, and they are to be disclosed on the net unless the client pays a hefty bitcoin ransom. Within an hour your chambers receives a ransomware demand from hackers who demonstrate that the entire IT system in your chambershas been breached by them, and the full content thereof – by way of electronic briefs and advices – will be disclosed on the net short of payment of $200,000 worth of bitcoin. How real is this? The article by John Meredith below confirms such reality.
The issue
Cybersecurity is becoming increasingly relevant and pressing in importance with respect to legal practice. The Bar is not immune from this reality.
In early 2022 the Bar Council and the Bar Standards Board in the United Kingdom were the subject of cyber attacks that were part of a raft of such attacks on the legal profession in London.
In respect of those cyber attacks, it was reported:[1]
The General Council [of the Bar] … has suffered a malicious cyber attack. Action was taken swiftly and required taking our IT systems offline in order to stop the attack and prevent any data loss. Our priority remains the protection of our IT systems and data from further attack. We do not believe any data has been lost. ……
Law firms, barristers’ chambers and legal professional bodies are emerging as prime targets for malicious attacks, frequently with the aim of extorting money. Yesterday top-100 firm Ward Hadaway obtained a High Court injunction against ‘persons unknown’ who last month made a $6m (£4.75m) blackmail demand after confidential documents were obtained in a cyber attack.
(emphasis added)
Suffice it to say that cyber attack upon any professional person, at the least, is commercially embarrassing, and inexorably harmful to the prospect of future dealings with the professional’s affected clients.
In addition, in Australia, statutory obligations are imposed upon professional financial services licensees pursuant to s.912A(1)(h) of the Corporations Act 2001 (Cth) to promulgate “adequate risk management systems”. These have been found to embrace cybersecurity (see below).
Such obligation may be expected to be expanded – by regulation or simply as good commercial practice – to other industries, including the legal profession. So much is a function of solicitors and barristers harbouring confidential client information in digital form. Barristers need to address the cyber resilience of their business systems.
RI Advice
The recent case of Australian Securities and Investments Commission v RI Advice Group Pty Ltd[2]involved the application of the above s.912A(1)(h).
Findings were made by the Federal Court of Australia against the respondent – an Australian financial services licencee – whose business was targeted in cybersecurity attacks,[3] and who was found to have failed to have adequate cybersecurity risk management systems in place to meet the risk of such attacks.[4]
In RI Advice, Rofe J canvassed cyber attacks and cybersecurity generally:
[27] As the holder of an AFSL, RI Advice is required to comply with the general obligations of a financial services licensee set out in s 912A of the Act. This includes the requirements:
(a) pursuant to s 912A(1)(a), to do all things necessary to ensure that the financial services covered by the Licence are provided efficiently, honestly and fairly; and
(b) pursuant to s 912A(1)(h), to have adequate risk management systems.
[28] By reason of the broad standards prescribed by ss 912A(1)(a) and (h) of the Act, and the factual matters set out above, RI Advice admits that at all material times, it was required to:
(a) identify the risks that the ARs faced in the course of providing financial services pursuant to RI Advice’s Licence, including in relation to cybersecurity and cyber resilience; and
(b) have documentation, controls and risk management systems in place that were adequate to manage risk in respect of cybersecurity and cyber resilience across the AR network.
…
[57] Cyberspace, and cyber-attacks, concern digital or computer technology or networks, and involve attacks directed at computers, computer systems or other information communication technologies. Cybersecurity is the ability of an organisation to protect and defend the use of cyberspace from attacks. Cyber resilience is the ability to anticipate, withstand, recover from and adapt to adverse conditions, stresses, attacks or compromises on systems that use or are enabled by cyber sources.
[58] Risks relating to cybersecurity, and the controls that can be deployed to address such risks evolve over time. As financial services are increasingly conducted using digital and computer technology, cybersecurity risk has also increased. Cybersecurity risk forms a significant risk connected with the conduct of the business and provision of financial services. It is not possible to reduce cybersecurity risk to zero, but it is possible to materially reduce cybersecurity risk through adequate cybersecurity documentation and controls to an acceptable level.
(emphasis added)
Her Honour also considered the expertise required in order to effect cybersecurity:
[46] Cyber risks, an adequate response to such risks and building cyber-resilience requires appropriate assessment of the risks faced by a business in respect of its operations and IT environment. Cyber risk management is a highly technical area of expertise. The assessment of the adequacy of any particular set of cyber risk management systems requires the technical expertise of a relevantly skilled person.
[47] Cyber risk management is not an area where the relevant standard is to be assessed by reference to public expectation. Rather, the adequacy of risk management must be informed by people with technical expertise in the area. I note that during the course of this litigation, both parties engaged highly qualified experts to produce reports outlining their opinions on the cybersecurity measures expected of an organisation like RI Advice. Some of this evidence is referred to in Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2021] FCA 1193. Further, the parties’ proposed orders requiring the engagement of a cybersecurity expert to identify any further measures to be implemented in respect of cybersecurity and cyber resilience.
(emphasis added)
With reference to RI Advice, national legal firm Allens, in a recent article by three of its partners Valeska Bloch, Christopher Kerrigan and James Campbell, noted that while the case focused upon the particular risks present in the financial services sector, “it is now more important than ever that all organisations take steps to improve their cyber security posture”.[5]
It was also noted by such authors that RI Advice is an example of “ASIC following a path well-trodden by its overseas counterparts and we don’t expect this to be a one off”, and that “[s]ystems and processes for managing cyber risk must respond to the evolving nature and profile of the risks”.[6]
In a recent article in ‘Lawyers Weekly’,[7] it was reported that a partner and head of cyber insurance at national legal firm Lander & Rogers, Melissa Tan, observed that cyber security risks and challenges now span across all sectors and businesses: “It’s such an important area only because it cuts across every industry, every size of business, and every individual; it really does not discriminate. It’s just an area where, as long as you have an iPhone, as long as you have a connection to the internet, you will be impacted somehow; the question is only when. That’s why it’s so important and so topical. And also, that’s why it’s so difficult to grapple with for some people because it’s so deep and it cuts across everywhere, and it’s broad”.
Cyber attack countermeasures
National accountancy firm KordaMentha, in a recent article by partners Brendan Read and Eric Eekhof,[8] wrote of the use of artificial intelligence in the fight against hacking:
Cyber and ransomware attacks have never grown faster than at rates we are seeing today – and worse is yet to come. Hackers are starting to use artificial intelligence (‘Al’) to create viruses faster than detection methods can keep up, to devise even more deceptive phishing emails and texts and to scan corporate networks for weaknesses. But also still active is the traditional low-risk, low-cost, high-reward ransomware. Driven by the lucrative nature of the trade, cybercrime is only set to rise. The European Union Agency for Cybersecurity noted that 2021’s 150% rise in ransomware is basically a spiralling trend.
Al is, of course, a double-edged sword used by both sides. While it makes life easier for cybercriminals, it can also be used to increase resilience and scope of cybersecurity systems. Still, managers must continue to coach their entire workforces, top to bottom, in how to recognise potential attempts to hack into company systems. If, for instance, an employee has already been taught how to recognise a phishing email, they must now be educated on how the weaponisation of machine learning models is potentially allowing cybercriminals to read their social media posts and customise the emails they send. Tactics now being employed by cybercriminals are boundless.
We will continue to see Al driving an increase in sophisticated cyber attacks. However, AI used for prevention, at its current rate, looks set to win the battle.
(emphasis added)
In the United Kingdom, it is now accepted instructing solicitors expect that the barristers they brief undertake – and substantiate to the solicitors in writing by checklist – appropriate cybersecurity measures in an effort to secure client information.
A ‘Professional Update’ issued by The Law Society (UK) on 16 July 2022, reported that an ‘information security questionnaire’ has been jointly produced by The Law Society with the Bar Council for use with such an objective in mind. The questionnaire, along with an explanation of the same is, at the following link:
In consequence, the time may well come when solicitors or their clients – government or private – will require like questionnaire completion and compliance by counsel selected for briefing.
The Australian Cyber Security Centre – a division of the Australian Government’s Australian Signals Directorate – has published a “Small Business Cyber Security Guide” which can be found at:
The above materials are informative and relatively easily digested sources for barristers to assess and address their cyber resilience.
The Bar need act
The publication ‘cybernews’ reports that so sophisticated are cyber criminals, whose profits are said to far outstrip those of international drug lords, they even go by commercial business names eg Conti, Quantum, BitPaymer and Doppelpaymer.[9] ‘cybernews’ says that in making ransomware demands cyber criminals hit hard and quick, and if tardiness in response is discerned they will even pepper the management executives, and their families, with emails and mobile phone calls demonstrating that they can and will do the damage they threaten, and in the short term.[10]
Lawyers, of course, are not immune from this insidious cyber reality. Implementing and monitoring adequate cybersecurity risk management systems are likely to become imperative requirements in legal practice. This is as much a matter for the Bar, as it is for solicitors.
Barristers – whether collectively in their chambers, or individually – would do well to re-visit their current cyber resilience regime with their (aptly qualified – see RI Advices at [46] and [47] above) IT provider so as to ensure that their protection from hacking is as up-to-date as possible. This ought entail, in addition, barristers having some modest understanding of the same – a not insignificant challenge in itself.
Garnering a comprehensive written report from such IT provider may not just be preventative, but could well prove a useful evidentiary tool in responding to litigation or regulatory intervention – including possibly the Legal Services Commission – resulting from exposure of a client’s confidential material (eg briefs, advices) upon a hacking event ensuing. The above mentioned UK questionnaire and Australian materials could be given to the IT provider to assist in report formulation. The answer, undoubtedly, would afford audit of the status quo and inform improvement in system resistance to cyber attack.
Cyber security infrastructure is only as good as the humans safeguarding it and the systems they implement. Generally cyber attacks result from humans letting “threat actors”[11] into their systems. So in addition to engaging reputable IT support, barristers should carry out cyber security training themselves, to ensure they can spot the risks (eg phishing – by email, smishing – by text) and learn to behave defensively with their data and systems day-to-day.
I thank the Editor, Richard Douglas QC, for his review and helpful suggestions.
[1] Michael Cross, “Bar left reeling from malicious cyber attack”, The Law Society Gazette (UK), 27 April 2022. Further, in a High Court (UK) decision of 12 July 2022, Justice Heather Williams ordered “a final injunction against the ‘person or persons unknown responsible for engaging in a cyber attack on the [firm] … and/or who is threatening to release the information thereby obtained’, preventing the use or publication of the stolen data”. At that hearing the Court was informed by the applicant (Ward Hadaway) that ‘a number of confidential files obtained from the [applicant’s] IT systems were uploaded to the dark web and made available for download’ shortly after it had obtained the interim injunction: “Hacker uploaded Ward Hadaway documents after injunction, court hears”, by Sam Tobin, The Law Society Gazette (UK), 12 July 2022.
