Communication with the Judge by the Parties to Litigation

In Ezekiel-Hart v Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 (8 August 2023), Curtain AJ, sitting in the Supreme Court of the Australian Capital Territory, wrote concerning the practice engaged in, from time to time, of parties, whether represented or self-represented, communicating electronically with a judge – invariably through the judge’s associate – bereft of prior consent of all other parties to the fact, or terms thereof. After noting that the practice was contrary to relevant Practice Direction and the statutory Conduct Rules for solicitors and barristers respectively, his Honour gave approval to the following statements in the authorities:

The act of a legal practitioner in communicating directly with a judge’s chambers must not be viewed as some casual, post-modern opportunity to provide useful information, but it is a step which must be taken with great care, less the impartiality of the judge be carelessly compromised.  Legal practitioners should discuss the proposal to communicate with the judge’s chambers in advance with the representatives of all active parties.  The consent to the proposal from all parties should be obtained.  Copies of the communication should be sent to all concerned, at the same time it is sent to the associate.  If consent is not forthcoming, the suitability of the time-honoured approach of arranging with the associate for the matter to be re-listed should be considered.  If urgency precludes that approach, any communication to the judge’s chambers should explain the problem, without disclosing any information for which the unanimous consent for a disclosure to the judge has been obtained, and appropriate directions sought from the judge … Ultimately this is an ethical issue that depends upon legal practitioners taking the greatest care to comply with their obligations.  It is always possible that exceptional situations will arise, that will require a novel course to be adopted.  That should not give rise to problems, provided that legal practitioners consider in a conscientious way how they should proceed. …  Notions of expediency however well-intentioned must … be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance).

(emphasis added)

The relevant conduct rules for barristers in Queensland – reflecting the rule for solicitors – mirrors those considered by Curtain AJ.  Relevantly the Barristers’ Rule 2011 provides:

Duty to Opponent

…

52. A barrister must not confer with or deal directly with any party who is unrepresented unless the party has signified willingness to that course.

53.  A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

a. the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or

b. the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.

54. A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in Rule 53.

55. A barrister must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 53(b), other than the matters specifically notified by the barrister to the opponent when seeking the consent of the opponent.

Curtain AJ’s reasons for judgment – which consider the authorities at length – may be found here.