How to Correct a Misleading Statement Made in Court

A barrister will confront this issue occasionally in their career, but there is a paucity of judicial treatment of the issue.

A scenario – and, in my view, the proper response in the circumstances – is that which follows. It is drawn from a matter in which I appeared recently in the Federal Court of Australia, leading junior counsel. 

The scenario is this: 

• A matter in which you briefed is called on urgently. It has to do with a variation to a freezing order. The requested variation was made by order of the judge.
• The order for that variation puts beyond doubt the ability to undertake a specific transaction. So, it was important.
• You return to chambers. Your client’s representative – who missed part of the hearing – hands you a letter received from a foreign party overnight. That consents to the order sought but subject to a caveat as to a particular issue.
• The Court has made an order that morning based, in part, on your representation to the court about an issue, namely that the foreign party – which did not attend the hearing – had been unresponsive. . You had dealt with that in court by submitting the variation did not touch that party.
• The letter demonstrates your representation is now objectively incorrect (or arguably so).  In truth, the foreign party had responded.
• You will always remember the busy minutes that followed. You will remember your junior having precisely the same reaction. So too your instructing solicitor.
• You discuss the barristers’ conduct rule and the parallel solicitors’ conduct rule.  You conclude your ethical obligation to disclose the error is invoked.
• Having told the client what you intend to do, explaining why, you ring your opposing counsel to give notice of re-listing.
• Your opponent knows what you must do. They, obviously, want the letter to be tendered.
• The opponent consents to you calling the associate to arrange for an urgent matter to be raised with the judge in court.
• The Barristers’ Rule 2011(Qld) leaves you no discretion. And that is intentional. The rule is:

27.  A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

• That afternoon, you appear, read rule 27 to the judge, refer the court to the new letter, and make some brief submissions.
• Your solicitors appreciate the importance.  The firm principal attends as well.

In the above scenario, Logan J, in Deputy Commissioner of Taxation v Raptis (No 2) [2023] FCA 1683, wrote (emphasis added):

16    These reasons for judgment supplement those given earlier today in respect of the making of a variation to freezing orders… Upon returning to chambers, Mr Marks of King’s Counsel and Ms Mendelson of counsel, who had appeared for all respondents – save the third respondent – became aware of an exchange which had occurred yesterday as between the third respondent and, in effect, those acting on behalf of other respondents. …

17    That letter makes reference to the proposed consent order and to a request made of the third respondent to agree to consent to that order. It does, however, contain a proviso as to that consent … Counsel for the other respondents, having indicated that there  hadn’t been communication from the third respondent before lunch, quite properly – upon it coming to their attention on returning to chambers that there had, in fact, been an exchange – requested that the case be relisted as a matter of urgency, so as to fulfill an ethical obligation in terms of a representation earlier made to the Court.

18    I am quite satisfied that the statement earlier made was inadvertent and, indeed, the product of the urgency which had attended the listing of the case before me.

As it transpired on this occasion, the order made earlier that day – on the new fact discovered, namely the letter’s existence at the time – was confirmed. But anticipating outcome that is not what counsel is tasked to assess under rule 27;  likely impact of the true facts on is not the touchstone for action.

Rather, counsel is  required to identify whether or not misleading conduct has ensued, such as to trigger the obligation prescribed by rule 27. The misleading statement previously made need be ventilated with the court, leaving it to the court to adjudicate – upon submissions made – any impact apropos of the order previously made, or if decision is reserved then the decision to be made.

In my view, the above exemplifies how counsel must respond if misrepresentation to the court is discovered: without regard to likely impact, promptly, on notice to the opposing lawyers or litigant and with complete candour.