Paper presented by the the Honourable Kenneth Martin at the Bar Association of Queensland Annual Conference on 4 March 2012.
(A) Introduction
In 1998, Justice David Ipp, then of the Supreme Court of Western Australia, wrote the groundbreaking article ‘Lawyers’ Duties to the Court’.1 Up till then, lawyers’ duties to the court had ‘developed over time as a network of pragmatic rules laid down by judges in circumstances very much of an ad hoc nature’.2The LQR article was one of the first attempts to collect and rationalise lawyers’ duties to the court as a ‘structured body of law’.
The LQR article assembled many seemingly disparate manifestations of a lawyer’s duty to the court, under four broad categories, namely:
a general duty of disclosure owed to the court;
a general duty not to abuse the court’s process;
a general duty not to corrupt the administration of justice; and
a general duty to conduct cases efficiently and expeditiously.
Ipp J observed that general duties (a), (b) and (c) emerged from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest, obstructive or inefficient practices. The essence of the duties is a requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the cause of justice.3
General duty (d) was considered to be a ‘reflection of the current changes in community attitudes and standards’.4
(B) Some uncontroversial observations about the lawyer’s duty to the court
The following aspects of the lawyer’s duty to the court were highlighted within Ipp J’s article:
The lawyer’s duty to the court is paramount. It is acknowledged that there may be situations in which this duty is inconsistent with the lawyer’s duty to their client. However, as Mason CJ observed in Giannerelli v Wraith (1988) 165 CLR 543, 556: ‘The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary’.
A recognition of the lawyer’s duty to the court does not imply that the duty is owed to a particular judge. The duty is actually owed to the community in general as a matter of the public interest in the administration of justice. When it enforces the duty a court will act as a guardian of the due administration of justice.
Lawyers’ duties to the court are legal duties imposed under the general law. They are personal in nature and nonâdelegable.
A breach of the lawyer’s duty to the court constitutes unlawful conduct. Such conduct may not necessarily be unethical. Furthermore, unethical conduct may not necessarily be unlawful.
Breach of a lawyer’s duty to the court is generally the subject of sanction imposed by summary procedure.
A court’s jurisdiction to proceed summarily against a lawyer who has breached his or her duty to the court is punitive, as well as compensatory.
Where a compensatory order is sought against the lawyer, some degree of causal connection needs to be demonstrated as between the lawyer’s conduct complained of and the amount of financial loss sought to be recovered.
Usually the breach of the lawyer’s duty to the court will not provide a basis for an independent cause of action for a purpose of founding a civil claim (in this context, the nature of the summary procedure referred to at 5, to which the lawyer is exposed, is of significance).
(C) Entrenchment of the higher duty
Since 1998 the legal practitioner’s paramount duty to the court has been well recognised.
In 2001, in a disbarment application involving a legal practitioner who had misled a judge on a summary judgment application, by knowingly relying on a false affidavit and then attempting to suborn a witness in disciplinary proceedings, the President of the Queensland Court of Appeal acknowledged the practitioner’s duty to the court by reference to Giannerelli. In the Council of the Queensland Law Society Inc v Wright [2001] QCA 58 McMurdo P (with whom Davies JA and Helman J agreed) said:
A practitioner’s duty to the court arises out of the practitioner’s special relationship with the court; it overrides the duties owed by a practitioner to clients or others: see Giannerelli v Wraith, [577 â 588]. The lawyer’s duty of the court includes candour, honesty and fairness. The appellant abused her role as an officer of the court in relying on materials she knew to be false and in deliberately and recklessly misleading the court in an attempt to further the interests of her clients and family. Her conduct was made more serious by its repetition. The effect of administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners’ submissions to the court. This duty of candour and fairness is quintessential to the lawyer’s role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner [67]. (footnotes omitted)
The practitioner was struck off the roll.
For barristers across Australia the duty to the court is clearly spelt out in Professional Conduct Rules which are uniform. The Australian Bar Association Barristers Conduct Rules (Revised 1 February 2010) are replicated by the Barristers Conduct Rules of the Bar Association of Queensland. The Queensland rules commenced on 1 July 2011 and are referred to as ‘the 2011 Barristers’ Rules’. I will refer to them from this point as the Barristers’ National Conduct Rules (the BNCRs).
BNCR 25 now provides:
A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
(my emphasis in bold)
Earlier, the BNCR 5, ‘Principles’, says:
These Rules are made in the belief that:
barristers owe their paramount duty to the administration of justice;
barristers must maintain high standards of professional conduct;
barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully and with competence and diligence;
barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues;
barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients;
(my emphasis in bold)
The BNCRs are to be interpreted on the basis of promoting those principles (see BNCR 6).
For Western Australia, equivalent rr 5 and 25 are identical.
Furthermore, in Western Australia, r 5 of the Legal Profession Conduct Rules 2010 enacted pursuant to the Legal Profession Act 2008 (WA) provides, as regards practitioners:
A practitioner’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including but not limited to a duty owed to a client of the practitioner.
(D) March 2005: The High Court of Australia’s decision in D’OrtaâEkenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
In this 2005 decision (which I will refer to as D’Orta), the High Court, by a majority of 6:1, reaffirmed the correctness of its 1988 decision on advocates’ immunity, Giannerelli v Wraith. The High Court in 2005 declined to follow the no immunity position established for England and Wales by the House of Lords in Arthur JS Hall & Co v Simons [2002] 1 AC 615.
In Giannerelli, members of the court, notably Mason CJ, had invoked the existence of a lawyer’s paramount duty to the court as one of multiple public policy rationales supporting advocates’ immunity. In D’Orta, seventeen years after Giannerelli, the founding policy considerations for advocates’ immunity needed to be thoroughly reconsidered by all members of the court.
D’Orta is primarily concerned with the issue of continuance for Australia of advocates’ immunity and, in that context, a true rationale underlying the immunity. But D’Orta is also a valuable repository of observations concerning the correlative issue of the lawyer’s duty to the court, particularly from a policy perspective.
In D’Orta, plurality reasons were delivered by Gleeson CJ, Gummow, Hayne and Heydon JJ. Justices McHugh and Callinan wrote separate reasons, as did Kirby J. McHugh and Callinan JJ reached the same conclusion sustaining the immunity as the plurality, albeit for what I assess as somewhat wider underlying policy reasons. Kirby J dissented.
Justice McHugh’s reasons in the present context are noteworthy for the emphasis his Honour gave to the pivotal role of the advocate in the administration of justice, in the context of the advocate’s duty to the court.
In D’Orta the plurality said:
Although reference is made in Giannerelli to matters such as: … (b) the potential competition between the duties which an advocate owes to the court and a duty of care to the client … each was, and should be, put aside as being, at most, of marginal relevance to whether an immunity should be held to exist.
…
The [above] matter assumes, wrongly, that the duties might conflict. They do not; the duty to the court is paramount. But, more than that, the question of conflicting duties assumes that the only kind of case to be considered is one framed as a claim in negligence. That is not so. The question is whether there is an immunity from suit, not whether an advocate owes the client a duty of care [25] â [26].
(my emphasis in bold, citations omitted)
The plurality proceeded to explicitly ground the contemporary policy rationale for the continuance of advocates’ immunity upon the nature of the judicial process. The plurality reasons emphasise that, once controversies have been resolved by judicial decision, it is repugnant to the interests of justice to allow ‘quelled’ controversies to be reopened through proceedings directed against the advocates that participated in the original proceedings. The plurality justices observed:
[T]he central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of reâlitigation would arise. There would be reâlitigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be relitigation of a skewed and limited kind [45].
The plurality reasons manifest something of a retreat from reliance on the aspect of a higher duty policy rationale mentioned in Giannerelli to sustain advocates’ immunity. This was assessed in D’Orta as being (at most) ‘of marginal relevance’.
Kirby J in D’Orta was unconvinced by any rationale to sustain advocates’ immunity. At [323], touching briefly on the issue of the advocate’s duty to the court, he said:
[F]urthermore, the barrister’s ‘divided loyalty’ to client and court does not support the existence of the immunity, as it is difficult to see how negligence could be found where a barrister has simply complied with a duty to the court. (footnotes omitted)
However, McHugh J, in reaching his decision to sustain advocates’ immunity in Australia, afforded a powerful recognition to the paramountcy of the advocate’s duty to the court, as a contributing policy rationale supporting a continuance of the immunity. Commencing at [105] of his reasons, McHugh J reâexamined a body of case authority underlying his premise that the advocate played an indispensable role in the administration of justice. McHugh J observed:
In Australia, the barrister, like the solicitor, is an officer of the court, as indispensable to the administration of justice as the judge. (my emphasis in bold, footnotes omitted)
McHugh J referred to Sir Frank Kitto’s oftâcited observations in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 286:
It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. [The barrister] is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with … fellowâmembers of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.
(my emphasis in bold)
McHugh J addressed squarely the significance of the advocate’s primary duty. He did this in illustrative terms, helpful to the present discourse. His Honour said:
Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount. That duty to the court imposes obligations on the barrister with which the barrister must comply even though to do so is contrary to the interests or wishes of the client. Thus, the barrister can do nothing that would obstruct the administration of justice by: deceiving the court; withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas; abusing the process of the court by preparing or arguing unmeritorious applications; wasting the court’s time by prolix or irrelevant arguments; coaching clients or their witnesses as to the evidence they should give; using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.
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’ [see Glebe Sugar Refining Co Ltd v Greenock Harbour Trustees [1921] SC (HL) 72 at 74]. The duty applies ‘quite irrespective of whether or not the particular authority assists the party which is so aware of it’ [see Glebe (supra) at 74].
Thus, in many situations arising in the conduct of litigation, the common law requires an advocate to act contrary to the interests of his or her client. I doubt if there is any other profession where the common law requires a member of another profession to act contrary to the interests of that person’s client. In some professions and callings, statutes now impose specific obligations on members to disclose information against the interests of the client. But advocacy is probably unique in imposing common law obligations on a professional person to act contrary to the interests of a lay client. This factor alone is probably sufficient to preclude reasoning by analogy from the liability of other professions and occupations for negligent conduct [111] â [113].
(my emphasis in bold)
McHugh J went further than the plurality judges in D’Orta in continuing to recognise as a contributing policy rationale for the continuance of advocates’ immunity, the wholly unique task of the advocate. McHugh J’s examples of the paramount duty owed by the advocate to the court – in contrast to obligations imposed in other professional callings – display an overlap in content to the examples of the lawyer’s duty to the court mentioned by Ipp J in his 1998 LQR article.
Justice Ian Callinan in D’Orta reached the same result as the plurality and McHugh J. But he, on my reading of his reasons, also took a wider view of the policy rationale and the contribution arising out of the advocate’s paramount duty to the court, in terms of a continuation of the advocates’ immunity for Australia.
At [370], Callinan J endorsed the three rationales mentioned by Mason CJ in Giannerelli as providing, ‘even more compelling reasons for the existence and the continuation of the immunity’. Callinan J continued:
There are other matters which require separate discussion. One is the duty that advocates owe to the court. It is a primary duty and transcends the duty owed to the client. That it transcends the latter does not mean that it is always easy for the advocate to distinguish between, and give preference to the primary duty in cases of doubt. The need for observance of the duty to the court as a primary duty requires that there be no ambiguity about what may flow from it, in particular, a claim, however misconceived, by the client against the advocate [379].
(my emphasis in bold)
Callinan J’s reference to the difficulty in first, disregarding, then second, giving preference to the advocate’s primary duty, sets the scene for today’s discussion.
(E) Devil and the Deep Blue Sea: Some practical observations concerning the advocate’s duty to the court post D’Orta
I will mention some day to day manifestations of the lawyer’s duty to the court, in the context of the present discussion, which is directed to circumstances where the paramount duty may fall into conflict with the duty to the client.
I do so commencing from the foundational premise that barristers are not ‘mere mouthpieces’ (BNCR 41) of a client or an instructing solicitor. I am also conscious of the substantive contributions likely to follow from the eminent members of the panel.
However, could I mention, at this point, a significant article relevant to this general topic by Justice Dyson Heydon: ‘Reciprocal Duties of Bench and Bar’ (2007) 81(1) Australian Law Journal 23. At page 24, his Honour refers to various duties which he describes as mundane and sometimes less well remembered. That modest introduction should not dissuade a reader from an intimate familiarity with his Honour’s discourse, which is invaluable, especially for young members of the Bar.
In terms of day to day manifestations of the present duty, I work from the fourfold taxonomy of Ipp J in what follows.
(i) The duty of candid disclosure to the court
Manifestations of the duty include:
(a) A cardinal responsibility not to intentionally mislead a court about facts or the law or, in the event that an inadvertent error is realised, to immediately and frankly correct the position with the court, at the earliest opportunity (BNCR 26 and 27).
This aspect of the duty falls into particularly sharp focus in the context of ex parte applications, particularly for urgent injunctions (BNCR 29). As Ipp J pointed out at page 69 of the LQR article, such applications are not adversarial, so it is ‘the lawyer’s unqualified duty to make full disclosure to the court so that the court’s decision is made on a fully informed basis’.5
(b) In criminal cases, a prosecutor’s duty to act fairly with regard to the accused. In consequence the prosecutor must disclose all material information to the defence (BNCR 86). This aspect of the duty has recently been the subject of close attention in my home state of Western Australia.6It is obviously important the duty be scrupulously observed, given the serious potential against personal liberty if it is not. In Libke v The Queen (2007) 230 CLR 559 a Queensland prosecutor’s ‘wild, uncontrolled and offensive’ crossâexamination (Heydon J at [121]) was the subject of an appeal to the High Court, and made the object of strong disapproval. See also BNCRs 82 â 94.
(c) The obligation to refer the court to all relevant case law, irrespective of whether the authority advances or detracts from the advocate’s position. (BNCRs 28, 31(a) and 33).
(ii) The duty not to abuse the court process
Day to day practical implications for a barrister arising under this aspect of the duty are many. But to mention a few examples, I note:
(a) Allegations of serious misconduct:
The obligation to exercise great care before making allegations of serious misconduct against others. At page 85, Ipp J observed of this aspect of the duty if the client insists that such unsubstantiated allegations be made, it is counsel’s duty to decline to carry out those instructions or to withdraw from the case.7
For barristers these obligations are firmly embodied in the BNCRs.
Sitting as a member of the Full Court of the Western Australian Supreme Court in Oldfield Nott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255, Ipp J addressed this subject in the context of an arbitration, where serious allegations, including allegations of fraud, had been made without being properly identified by a pleading or by particulars. Referring to a well established line of authority concerning the requirement for fraud to be distinctly alleged and particularised (see Davey v Garrett (1877) 7 Ch D 373, 489 (Thesiger LJ), Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250, 268 (Buckley LJ) and Armitage v Nurse (1998) Ch 248, 256 â 257 (Millett LJ) (as he then was) and Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 573) Ipp J then observed:
In my opinion, the aforegoing principles apply equally to allegations of professional impropriety or misconduct, whether they arise in the context of an action brought in a court or in arbitration proceedings. Allegations of this kind are so serious and potentially so damaging that a defendant is entitled to have them specified in appropriate detail in order to know precisely the case which it has to meet. It is no answer then to say that the Arbitrator did not have to order pleadings or that the Arbitrator was not bound by the rules of evidence but might inform himself as he thinks fit … Unpleaded allegations of professional impropriety or misconduct are so serious that it would be highly prejudicial and unfair to require the party to proceed with an arbitration subject to pleadings where these allegations are not pleaded [38].
(my emphasis in bold)
See also Murphy JA in Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASC 17; (2011) 278 ALR 291 [605], [606] referring to the Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199, 219 â 220.
Notwithstanding the clarity of these principles, day to day tensions obviously can arise as regards a client’s firm belief or suspicions, especially when they perceive that they have been subjected to a cruel injustice. Dare I suggest that it is on these occasions when the detached and dispassionate thinking of an experienced barrister is invaluable.
It is not surprising that in this area the BNCRs, under the heading ‘Responsible use of court process and privilege’ (BNCRs 59 â 67), erect a regime of balance between adviser independence, fearless pursuit of the client’s interests when necessary and overall fair play. BNCR 60 provides:
A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:
are reasonably justified by the material then available to the barrister;
are appropriate for the robust advancement of the client’s case on its merits; and
are not made principally in order to harass or embarrass a person.
(my emphasis in bold)
As to allegations of fact see BNCR 63.
As regards submissions and opening and closing addresses there is a requirement for a barrister’s belief on reasonable grounds that ‘the factual material already available provides a proper basis’.
For allegations of fact amounting to criminality, fraud or other serious misconduct BNCR 64 requires a barrister’s belief ‘on reasonable grounds‘ that:
available material by which the allegation could be supported provides a proper basis for it; and
the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
The rule requirements for ‘reasonable grounds’ to be held by the barrister under BNCRs 63 and 64 are then balanced by BNCR 65 which provides:
A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).
In cases of sexual assault, indecent assault or indecency there is a balancing effected as between BNCRs 61 and 62 for crossâexamination as to credit (see BNCR 66) and as regards pleas in mitigation involving allegations of serious misconduct against others and the obligation to avoid disclosing the other person’s identity directly or indirectly (unless there are reasonable grounds to believe that that disclosure is necessary for the proper conduct of the client’s case) (BNCR 67).
(b) Cases that are bound to fail:
The legal practitioner who advances litigation merely in order to generate costs or fees would be acting in breach of his or her primary duty to the court.8
In the area of hopeless cases, Queensland Justice of Appeal Davies’ reasons in Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; (2003) 2 Qd R 683 deliver a very significant contribution. Davies JA rejected the statement of principle in Ridehalgh v Horsfield [1994] Ch 205. There, the Court of Appeal of England and Wales had adopted a cautious approach to characterising any case as hopeless, observing (234):
It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it.
The UK Court of Appeal drew a distinction between a case that was bound to fail, in contrast to the scenario of lending assistance to proceedings which are an abuse of the court’s process. However, in Steindl Nominees Pty Ltd v Laghaifar in observations agreed in by Williams JA and Philippides J, Davies JA said:
To the extent that those statements state or imply that it is not improper for a legal representative to present a case which he or she knows to be bound to fail, I would reject them. I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, 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 [24].
Davies JA proceeded to mention the bar conduct rule of the day entrenching the role of counsel’s forensic judgment, to be exercised independently, notwithstanding a client’s desires. See now BNCR 42, which provides:
A barrister will not have breached the barrister’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s wishes, simply by choosing, contrary to those desires, to exercise the forensic judgments called for during the case so as to:
confine any hearing to those issues which the barrister believes to be the real issues;
present the client’s case as quickly and simply as may be consistent with its robust advancement; or
inform the court of any persuasive authority against the client’s case.
Running a hopeless case may generate an exposure to adverse cost consequences for the legal representatives involved, if a court is satisfied there has been a serious dereliction in performance of the practitioner’s duty to the court: see McClelland v Perpetual Trustee Co Ltd [2010] QCA 281 [23] (Holmes JA, with whom White JA and Mullins J agreed).
I also mention the observations by Mansfield J in the Federal Court in Kumar v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 18; (2004) 133 FCR 582 [14]. In that case Mansfield J thought it was not enough that an advocate had been arguing a hopeless case. More was required. Even so, advocates are not excused from their duty of independence and frankness to the court: Kumar [15].
The subsequent reasons of French J (as he then was) in the Federal Court in Ex Christmas Islanders Association Inc v Attorney General Commonwealth (No 2) [2006] FCA 671; (2006) 233 ALR 97, in the context of costs orders made against a solicitor advocate, collect and review what presents now as a somewhat divergent body of authority across the country, in the context of personal costs orders against legal representatives. There appears to be something of an unresolved question whether Justice Davies’ observations in Steindl at [27] were too robust: see French J’s reasons at [13] â [20]. French J did award costs against the solicitor advocate. But he concluded:
In the present case the way in which the application was formulated and the argument presented indicated not merely the presentation of an unarguable case. It indicated a failure to discharge the practitioner’s basic duty to consider the legal issues which should have been considered before the application was prepared and filed and before argument on it was presented to the Court [21].
(my emphasis in bold)
(c) Where a legal practitioner is or becomes aware that the client’s proceedings are instituted or continued merely for the purpose of applying pressure upon a defendant, then the practitioner cannot facilitate or participate in that tactic. Specifically, the tactic of pursuing proceedings with the primary objective of exhausting the financial resources of a defendant in order to force a settlement would transgress this aspect of the duty.9
(iii) The duty not to corrupt the administration of justice
Day to day manifestations of this aspect of the duty include:
(a) In the criminal law context, that a practitioner is heavily constrained in representing a client who insists on pleading ‘not guilty’, if the client has made a frank admission of guilt to the practitioner prior to the trial.10(See also BNCRs 78 and 79.)
(b) Not to participate in any dishonourable or improper conduct of the client, either in or out of court. As to when the line is approached, but not crossed, in advising bikie clients of the looming execution of a search warrant against their premises by the police, see Legal Services Commission v Winning [2008] QLPT 13 [25] â [26], a decision of the (former) Legal Practice Tribunal of Queensland. White J was the presiding tribunal member. (I observe that Rockhampton would appear to be no place for the fainthearted practitioner.) Particular care needs to be taken in the area of tax advice.11
(c) The obligation not to participate in, introduce into evidence or rely upon an untrue affidavit sworn by a client. That is an obligation particularly applicable in relation to an affidavit of discovery in civil litigation. Whilst this is an obligation of perhaps more practical application to solicitors than barristers, it is not uncommon for advice to be sought from the Bar in respect of the ambit of discovery and privileged communications. In the LQR article Ipp J observed:
The solicitor must assist and advise his client as to the latter’s bounden duty in that matter, and if the client should persist in omitting relevant documents from his affidavit, the solicitor should decline to act for him any further … [A] solicitor owes a duty to the court to go through the documents disclosed by his client carefully, to make sure, as far as possible, that no relevant documents have been omitted from the client affidavit.12
(d) Dealings with witnesses. Care obviously needs to be taken to avoid coaching or at any improper attempt to deter a witness from giving truthful evidence in a case: BNCR 68. It is permissible to prepare a witness to give coherent evidence, particularly in a commercial case involving many documents. It is proper for a trial witness to peruse and refresh from the documents, so as to be adequately prepared, both for providing a witness statement and then for giving evidence. Legitimate document familiarisation is in stark contradistinction to attempts to school witnesses by equipping them with clever responses for questions that are likely to be asked during crossâexamination. Instructions about a lack of memory or the problematic consequences arising from the word ‘would’, are, however, legitimate.
(e) Barristers and solicitors must advise scrupulously as regards an assertion of a claim to legal professional (client legal) privilege. They must not connive in a ‘hiding’ of relevant documents under abuses of this privilege. In 2008 the Australian Law Reform Commission made ethical conduct recommendations concerning invocations of legal professional privilege, in the wake of recent notorious abuses.13
(f) Actively encouraging a potential witness, defendant or accused to depart from a truthful account of events which is perceived to be ‘unhelpful’ or, worse still, to not give evidence at all. Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, is an egregious West Australian example of such a transgression captured by the recording of the solicitor’s phone call to a prisoner, advising, pleading and cajoling the witness not to give evidence against her client (who was also the solicitor’s abusive lover). That misconduct strikes at the heart of the administration of justice. It is likely to result in the practitioner being struck from the roll, as occurred in Pepe’s case.14
(g) Speaking to the media. There are now uniform media comment rules for barristers, nationally. BNCRs 75 and 76 relevantly provide:
75. A barrister must not publish or take any step towards the publication of any material concerning any proceeding which â
(a) is known to the barrister to be inaccurate;
(b) discloses any confidential information; or
(c) appears to or does express the opinion of the barrister on the merits of a current or potential proceeding or on any issue arising in such a proceeding, other than in the course of genuine educational or academic discussion on matters of law.
76. A barrister must not publish or take any step towards the publication of any material concerning any current proceeding in which the barrister is appearing or any potential proceeding in which a barrister is likely to appear, save that:
(a) a barrister may supply answers to unsolicited questions concerning a current proceeding provided that the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case, the nature of the orders made or judgment given including any reasons given by the court and the client’s intentions as to any further steps in the case;
(b) a barrister may, where it is not contrary to legislation or court practice and at the request of the client or instructing solicitor or in response to unsolicited questions supply for publication â
(i) copies of pleadings in their current form which have been filed and served in accordance with the court’s requirements;
(ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection;
(iii) copies of transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court; or
(iv) copies of exhibits admitted in open court and without restriction on access.
(BNCR 77 concerns advice to a client about media comment.)
A discussion about these rules could occupy an entire weekend. By highlighting them, can I simply observe:
(i) the balance the rules seek to strike between freedom of speech and the integrity of the curial process;
(ii) the embodied recognition in the rules that, in the main, justice should be administered transparently;
(iii) the objective that the wider public be accurately informed as to what takes place in litigious proceedings and that the media be assisted, to the extent feasible, towards achieving accuracy in their reports of curial proceedings;
(iv) recognition of a tension as between a client’s aspiration that an eloquent senior and respected barrister can provide a public vindication for their position, which is balanced against the independence and paramount duty the barrister owes to the court in the administration of justice.
In this area can I mention two cases, one from Western Australia and one from Queensland. Both arise out of the arrest and conviction in Bali of Schappelle Corby. The Western Australian case concerned senior counsel who had been engaged for Corby pro bono under a direct brief. Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 is a decision of the Western Australian State Administrative Tribunal (SAT) comprising Judge Eckert, Mr Edmonds SC and Ms Holland, delivered 13 March 2009.
The second decision is by the Queensland Legal Practice Tribunal in Legal Services Commissioner v Tampoe [2009] QLPT 14, in a Tribunal presided over by Atkinson J.
In both cases the essence of the transgression (for senior counsel and the practitioner respectively) appears not so much to have been the making of a media statement per se. Rather the emerging problem was the disclosure of the client’s confidential information by doing that.
The decisions highlight obvious risks associated with speaking outside of court (defamation liability and contempt of court being other risks).
In LPCC and Trowell there is a fascinating discussion concerning whether there is an obligation to speak out in circumstances of perceived illegal activity. In that case, there was an assertion that from some in Corby’s Indonesian team of advisers had made a proposal that they bribe the Indonesian appeal court judges and that funds were being solicited on Corby’s behalf to further that unlawful end. The Tribunal said:
However … disclosure by a lawyer of such confidential information could only be justified if made to the appropriate authority or otherwise in accordance with the exceptions to [the applicable rule]. It is difficult to see how it could justify publication to the press [384].
(my emphasis in bold)
In LPT v Tampoe the solicitor concerned was the subject of the Tribunal’s recommendation that his name be struck from the roll of legal practitioners. His television interview on the Channel 9 programme ‘Sunday’ and his subsequent participation in a documentary about the Corby case had both been problematic. In the first interview he had disclosed confidential material. The Tribunal observed (5):
It is fundamental to the relationship between solicitor and client that the legal practitioner will not reveal confidential information. It is hard to think of a more egregious breach than to do so on a national television programme.
In the course of his second interview the practitioner was found to have made scandalous and offensive remarks, likely to bring the profession into disrepute. Their ‘X’ rated content inhibits me from traversing them here at any length: see pages 1 â 6 of the reasons.
The potential to be wedged between the Devil and the Deep Blue Sea by media comments must be recognised. Having said that, there will be occasions in which a proper informative public comment will be appropriate, as the work of Queensland solicitor, Peter Russo, and local silk, Stephen Keim SC, demonstrated by their fearless defence of Mr Hanif in proceedings well known in Queensland.
(iv) The duty to conduct cases efficiently and expeditiously
This aspect of the lawyer’s obligation to the court was described by Ipp J as ‘a reflection of the current changes in community attitudes and standards’.15It is a responsibility which nowadays is of greater importance than ever. The day to day implications of the duty are numerous, but as to practicalities, could I mention:
(a) The obligation not to take on a case as an advocate in circumstances where the barrister is plainly unqualified for the complexity of the task or has an inadequate knowledge of the area of law concerned. In a Queensland Legal Practice Tribunal decision, Legal Services Commission v Scott [2009] LPT 7, a practitioner commenced a class action arising out of the Patrick Stevedores waterfront dispute of the late 1990s. Fryberg J observed that the practitioner was ‘out of his depth’: see [22]. That comment was as to the magnitude of the litigation and the nature of the clients (described as ‘difficult’). There, the clients’ instructions to the practitioner were particularly robust, see [22]. The adverse consequences for clients and the court of a legal practitioner, barrister or solicitor, ‘biting off more than they can chew’, are selfâevident.
(b) As a corollary, legal practitioners – and, I think, barristers in particular – have a responsibility not to accept an engagement under brief, in circumstances where they are simply too busy or overcommitted to enable them to perform their task to an acceptable standard. A solicitor or client confronted with a handover scenario caused by the barrister’s own difficulties should not be asked to bear the cost of the barrister’s overâcommitment.
(c) The obligation to facilitate the timeous meeting of case management directions rather than treat court directions as little more than aspirational objectives, to be ignored with impunity. Orders and directions of a court must be respected in the interests of justice. Otherwise the system grinds to a halt.
Commercial courts are very well acquainted with the pressures of modern practice. In my experience, we will readily accommodate a properly grounded request/application for a timing variation in orders or directions if made.
So, where a direction or order cannot be met for a reason of good moment, the court should usually be approached with an explanation, provided under affidavit (if possible), which explains the default (or the looming default) and seeks the court’s indulgence by a variation of the order.
(d) Selfâevidently, but (regrettably) still needing to be articulated, is the situation where a barrister gives a personal undertaking to the court. That is an occasion of the utmost seriousness. The undertaking should never be lightly made or, if given, ought be scrupulously honoured in its performance. The cavalier attitude sometimes seen that attaches little importance to honouring such undertakings is never to be countenanced.
(e) Since 1998, when Justice Ipp made the LQR observations concerning this duty to conduct cases efficiently and expeditiously, the electronic communication revolution has intensified. But rather than leading to a reduction of the amount of documentary material placed before courts, the modern ease of marshalling information stored electronically has just meant that more documents than ever are being trawled over and then dumped on courts.
The BNCRs reflect a modern and critical need for the independent role of the barrister to assist by curtailing what is now ‘out of hand’ by reason of sheer information overload on everyone. Sadly, oppressive volumes of documents are routinely assembled without a discriminating mind being applied to their relevance or utility in the litigation.
Given an overload problem everyone acknowledges, I note those BNCRs which emphasise the independence and forensic judgment of the barrister, above the wishes of the client.
First, see BNCR 5(e):
These rules are made in the belief that barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients;
Next, see BNCR 42:
A barrister will not have breached the barrister’s duty to the client, and will not have failed to give appropriate consideration to the clients or the instructing solicitor’s wishes, simply by choosing, contrary to those desires, to exercise the forensic judgments called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real issues;
(b) present the client’s case as quickly and simply as may be consistent with its robust advancement.
Then see BNCR 57, which John Bond SC mentioned in his presentation yesterday.
A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:
(a) confine the case to identify issues which are genuinely in dispute;
…
(c) present the identified issues in dispute clearly and succinctly;
(d) limit evidence, including crossâexamination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and
(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.
The recent observations by Pembroke J in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 [19] â [22] under the heading ‘Duty to Court’ are pertinent. His Honour referred to counsel’s duty to inhibit litigants from using their evidence as an opportunity to ‘unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case’. Justice Heydon’s article (‘Reciprocal Duties of Bench and Bar’) was mentioned in this respect towards his Honour’s cry for a curtailment of the ‘strictly adversarial approach’: see [22].
There is now ample power, incentive and, I would suggest, protection for barristers, whilst remaining appropriately cognizant of a litigant’s interests, to ‘flex their muscles’ as true quality controllers in relation to the issues, documents and evidence brought before the court.
(F) Conclusion
One of my colleagues recently observed that, from a practical perspective, once the true nature of the lawyer’s duty to the court is appreciated, its implementation in terms of advancing the interests of a client should rarely be a problem. This was because, in the end, he believed that loyalty to the client and loyalty to the court advance the same object, namely the interests of justice.
No doubt ‘on the ground’ day to day tensions must arise. But a fearlessly independent Bar plays an indispensable role recognising and then delivering a proper prioritisation of objectives in situations where they are perceived to clash or jar.
The indispensable role of the Bar, as an unshackled ‘quality controller’ in the pursuit of honourable standards of professional conduct, for an honourable legal profession is, today, more important than ever.
Ipp J, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63.
Ibid 65.
Ipp J (supra) 65 (footnotes omitted).
Ipp J (supra) 65 and 105.
Ipp J (supra) 69, referring to footnote 41 and authority there cited.
See Mallard v The Queen (2005) 224 CLR 125. See also Cannon v Tahche (2002) 5 VR 317 [57] â [59] (Winneke P, Charles and Chernov JJA).
See Ipp J (supra) 85, in particular the authorities cited at footnotes 140 and 141.
See Ipp J (supra) 85 â 86, in particular footnote 142.
See generally Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.
See Ipp J’s LQR observations (supra) at 87 and 99 referring in particular to the forensic embarrassment of counsel and how far the Crown’s witnesses can be challenged. The leading High Court case Tuckiar v The King (1934) 52 CLR 335 remains the salutary example of the existence of counsel’s duty both to the client and to the court. The significance of Tuckiar was reiterated by McHugh J in D’Orta [110] particularly at footnote 166.
See generally Forsythe v Rodda (1989) 42 A Crim R 197, referred to by Ipp J (supra) 90.
See Ipp J (supra) 90 â 91 and footnote 169 referring to Woods v Martins Bank Ltd [1959] 1 QB 55, 60 (Salmon J).
See ALRC Report 107 (February 2008) including recommendations 9-1 to 9-6 inclusive.
See Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 [36], [37] and [39] (Murray and Beech JJ).
See Ipp J (supra) 65 and footnote 15.
Paper presented by Peter Dunning KC at a Bar Association of Queensland CPD seminar in 2009.
In the attached edited version of a paper delivered to the District and County Court Judges’ Conference on 25 June 2009 in Sydney, the Honourable Murray Gleeson AC KC distinguishes between the bureaucratic and judicial junctions, identifying a number of essential characteristics of the judicial method, including: the institutional independence of courts, the personal independence of judges, certain standards of fairness and openness in decision making, and an apolitical process.
On 22 March 2006, Graham Gibson KC and the now Honourable Justice Declan Kelly presented a joint CPD Seminar that examined some aspects of cross examination on documents. The Seminar was motivated by a ruling given by Justice Chesterman during the course of the trial in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233. The ruling concerned the cross examination of a witness about the contents of a document not made by that witness.
The Seminar ranged well beyond that issue; dealing with topics such as proving documents, refreshing memory, tender under compulsion, cross examination on pleadings and restrictions on the freedom to cross examine on documents.
The Full Court of the Federal Court in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34, comprised of Perram, Bromwich and Colvin JJ, recently succinctly summarised the principles concerning the proper preparation of a notice of appeal and subsequent conduct of the appeal.
The Court said:
Difficulties that arose from the manner in which Sunshine conducted the appeal
[129] The Federal Court Rules 2011 (Cth) require that the notice of appeal ‘must state…briefly but specifically, the grounds relied on in support of the appeal’: r 36.01. Difficulties may arise when litigants in person are called upon to meet the requirement: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30]. …
[130] The appeal brought by Sunshine advanced more than 30 grounds. It is not possible to say precisely how many grounds were advanced because of the use of sub-paragraphs to articulate separate grounds and the way in which some of the grounds were expressed.
[131] Many of the grounds were unfocussed in the sense that they alleged error at a high level of generality. In most instances they did no more than identify a contention that had been rejected by the primary judge. Universally, the ‘grounds’ failed to identify the paragraphs in the reasons of the primary judge where the alleged error in reasoning was said to have occurred. In almost all cases, the grounds failed to articulate what it was said the primary judge should have found. In consequence, the grounds of appeal were little more than a list of many of the arguments that had been advanced unsuccessfully before the primary judge. They failed to engage in any real sense with the reasons for decision of the primary judge. They manifested a fundamental misunderstanding of the nature of the right of appeal from a single judge of the Court conferred by the Federal Court of Australia Act. They provided no focus for the appeal.
[132] Appeal grounds should not include argument. Nor should they take the form of broad statements of the contentions that will be advanced on appeal. They must identify the nature of the error in the reasoning of the primary judge (pointing to where the error occurred) and state what should have been done by the primary judge, noting that the error may take the form of a failure to address a point of significance (see, for example, Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298).
[133] When it comes to factual findings, the appeal grounds should reflect the well-established principles for challenging factual findings: see the recent summary in Frigger v Trenfield (No 3) [2023] FCAFC 49 at [134]-[147], especially at [141] concerning findings based upon a conclusion as to a lack of credibility of particular witnesses. Further, if findings are not challenged on appeal, they must be accepted. It is never appropriate to proceed, as Sunshine did in the present instance, as if there had been no factual findings by the primary judge and simply seek to argue the case by reference to the evidence before the primary judge (or worse still, some aspects of that evidence).
[134] Well drafted grounds of appeal are informed by an understanding of the reasoning pathway adopted by the primary judge. This is so for a number of reasons. It is an approach that ensures that consideration is given to whether the appeal grounds, if upheld, will provide a basis upon which the judgment or orders under appeal should be overturned. It will expose whether it is necessary for the appellant to succeed on all grounds or whether some grounds if upheld provide alternative bases upon which the appeal should be upheld. It will also expose whether the complaint goes nowhere in the overall scheme of things. Most importantly, it will inform what should be the subject of a separate appeal ground. Usually, there should be a separate appeal ground directed to each alleged error in the reasoning pathway, rather than rolling up issues in the same ground. It will also expose whether the ground is expressed with too much generality to enable the appeal court to understand the flaw in the logic of reasoning that is alleged, or to specifically direct attention to the point in the reasoning that is said to be infected with error.
[135] The formulation of an appeal ground is not like the formulation of a pleading. Grounds of appeal should not be elaborate nor should they set out matters at great length: Sansom v Sansom [1956] 1 WLR 945. The aim should be greater clarity rather than greater particularity: Maddren v Bell [1998] WASCA 215. Not every grievance will constitute a ground of appeal and findings as to subordinate or basic facts will rarely found a ground of appeal: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 at [4]. Instead, it is necessary to focus upon intermediate findings or conclusions that are said to be in error (including references in the grounds to all the paragraphs that are challenged by the ground) and then, subsequently, make submissions in support of the ground by reference to the underlying facts and findings.
[136] Appeal grounds should also be prepared with a keen eye to conformance with the duty to exercise an independent judgment in regard to the arguments to be presented: Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2000] WASCA 102 at [13]; and Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at [215]-[218].
[137] Sometimes, well prepared submissions in support of an appeal will remedy the burdens of a deficient notice of appeal by exposing the matters that should have been expressed in the grounds (but were not). Such a course is not to be encouraged because it poses difficulties for understanding whether there should be case management directions as to the conduct of the appeal. It is also likely to result in unfairness to any party opposing the appeal.
[138] In the present case, many of the matters alluded to in the appeal grounds were not addressed at all in the submissions or received only cursory mention in written submissions without being developed orally. Other aspects of the submissions bore no connection to any of the grounds. Difficulties were posed for the conduct of the appeal and the preparation of these reasons by the defective manner in which the appeal grounds were prepared. Those difficulties were most manifest when it came to those aspects of the appeal which sought to challenge the factual findings made by the primary judge and even more so the findings as to credibility. Those findings by the primary judge rested upon the consideration of documents, inferences drawn from those documents as well as, in certain respects, conclusions to the effect that witnesses for Sunshine were not credible because they gave a ‘schooled’ account which did not reflect the actual practices of Sunshine in dealing with its customers. As has been mentioned, impugned findings of that kind need to be challenged in accordance with established principles for challenging factual findings. Otherwise, as has been mentioned, the appeal must be conducted on the basis of the findings that have been made by the primary judge.
[139] The primary judge also found that there had been admissions by Sunshine that were consistent with his findings on certain key aspects.
[140] The appeal took the form of re-arguing the points that had been put to the primary judge in a road brush way without regard to any real analysis of the merits of the reasoning of the primary judge, the pathway by which conclusions adverse to Sunshine had been reached, the precise findings it was alleged that the primary judge should have made or the evidence that was relevant to those findings.
Litigation has been likened to war.[iii] As a starting point, the litigation environment in civil suits is clearly an adversarial system. At first glance, it would lend itself to lessons of war, insofar as the parties generally throw everything they can at their opponents in the hope that their legal construction based on the facts will find favour with the decision maker.
Some obvious similarities are that parties in civil litigation may agree on some things but will take polarised positions on critically core issues. In addition, both parties accept that they will have to draw on their resources during the course of the litigation, both in terms of money and the time they must dedicate to proceedings.
The method which this paper puts forward boasts that it will help the party utilising the method and the Court. However, it is not a “one size fits all” suggested solution. It will not appeal to a well-funded party, who, regardless of the merits of their case, is able to adopt through a number of means such as lengthy protracted pre-litigation correspondence, or unmeritorious interlocutory applications, aims to exhaust their opponent financially and/or psychologically, in the belief that the claims, even strong ones, will be abandoned.
This paper proposes that before engaging in applicant/plaintiff civil litigation, at the time when the possible claims are considered, that there should be, in appropriate cases, a “culling” of claims by abandoning mediocre claims and narrowing the scope of the battlefield to only the best claim or claims.
Of course, there is an inclination to try to run as many claims as possible, in the hope that one or more of the claims appeal to the judge. Recently, in the Full Court of the Federal Court judgment in the Katy Perry case (Killer Queen), there were extremely competent lawyers on both sides which did not prevent their Honours of the Full Court from making this observation:
“The primary judge gave extensive reasons, not least because the parties chose to put every conceivably arguable factual and legal contention into issue. Their approach to the appeal was no different.” [iv]
This paper advocates – that in the appropriate circumstances – the strategy of the applicant/plaintiff should be based on the model of the Greeks, predominantly Spartans, at the Battle of Thermopylae, in 480BC.[v] This battle is more commonly identified with the 300 Spartan warriors which, for a time, were able to resist the Persian hoard. It is true that the 300 were ultimately defeated, but not because of the strategy they adopted, but rather by a Spartan traitor Ephialtes, who lead the Persians to a remote path behind the Spartans, leading to the ultimate death of the 300.
The battle, which has been the subject of the 1962 cinematographic film production “The 300 Spartans” starring Richard Egan as King Leonidas, and more recently “300” starring Gerard Butler as the Spartan leader, speaks from the past to inform in this instance, litigators.
The 300 were able to resist the Persian force by limiting the geographic area of engagement, rendering the vast resources of the Persians ineffective. So too, in the conduct of the litigation, if the issues of engagement are narrowed to a much smaller or narrower field of engagement, the potency of a much larger and/or well-funded opponent is significantly reduced (the “300 strategy”).
Of course, there will be readers of this article who have applied such strategy in appropriate cases for many years. However, I would suggest that the “throw in everything” approach dominates the litigation landscape.
There are several mechanisms which may be utilised in the exchange to achieve this goal, however it is a discipline which must be continually practised from correspondence to pleadings and contested interlocutory disputes.
First, we consider the 300 strategy. Thereafter, whilst making comparisons with the 300 strategy, we examine the approach of a number of other strategists who have deployed battle or war strategies to the litigation environment. The paper will then conclude by identifying in summary, the benefits of the 300 strategy when practised in the litigation landscape.
We do not posit a hard and fast rule in the process of litigation, but rather an approach to litigation in an environment when a small to medium enterprise (SME) seeks to enforce its intellectual property right (IPR) against a well-funded alleged infringer.
The strategy has two clear benefits. First, it will usually provide a much more level playing field where the disparity in resources of the opposing parties is reduced substantially. Secondly, the results of implementing this strategy will be welcomed by the Court, as reflecting the applicant’s intention aiming to reduce the issues in dispute to the strongest IPR claim.
What is the optimum goal strategy for war or litigation?
The “off-the-cuff” answer is likely to be “to win”. A less enthusiastic response would be “to win at all costs”.[vi]
Sun Tzu’s[vii] conclusion on the ultimate strategy of war, which, in the authors’ opinion, resonates with litigation, is this:
“Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.”[viii]
In litigation of course, there must be an immediate fight upon the filing of the initiating process. However, following filing, the ultimate strategy must be directed to break down the opponent’s resistance, achieve the relief sought (or as close to it), and consider the costs which are expended to achieve that result.
The 300 strategy aims to narrow the scope of the argument, substantially limiting the actions of a much better resourced opponent and driving the claims to resolution by narrowing the “playing field” or area of substantial dispute.
An essential element of the 300 strategy is that it requires a claim that has better prospects of success than the opponent. It is tailor made for a battle between a large corporation blatantly infringing the IPR of an SME, where the corporation seeks to exhaust the SME during the litigation process with mechanisms such as unmeritorious interlocutory applications.
What is the “300 strategy”?
The 300 strategy is a conscious approach the SME IPR owner adopts in seeking to enforce IPR, which narrows the conduct of the enforcement action to its minimal and most enforceable elements. The 300 strategy aims to limit in any and every way, how the SME approaches the enforcement action from the pleaded infringement case to correspondence and interlocutory procedures (if any), and case management. An example, and a memorable visual of this 300 strategy, is based on the example of the Battle of Thermopylae.
The Battle of Thermopylae was fought in 480 BC between the Persian Empire under Xerxes I and an alliance of Greek city-states, which were led by Sparta under Leonidas I. The battle lasted three days and was one of the most prominent battles of both the second Persian invasion of Greece and the wider Greco-Persian Wars. Leonidas chose to camp at and defend the “middle gate”, the narrowest part of the pass of Thermopylae. The strategy was designed by the Greeks to allow for their inferior numbers and so become less of a weakness.[ix]
The primary source for the Greco-Persian Wars is the Greek historian Herodotus. His account in Book VII of his Histories is such an important source that Paul Cartledge wrote: “we either write a history of Thermopylae with [Herodotus], or not at all”.[x] According to Herodotus, Xerxes’ army was so large that, upon arriving at the banks of the Echeidorus River, his soldiers proceeded to drink it dry. In the face of such imposing numbers, many Greek cities capitulated to the Persian demand for a tribute of earth and water.[xi]
The historian Diodorus Siculus, who had read Herodotus, agreed with Herodotus regarding the number of 300 Spartan hoplites. Herodotus claimed – which has been in dispute – that there were a total of 2.6 million military personnel Xerxes had gathered, accompanied by an equivalent number of support personnel.[xii] Modern scholars tend to reject the figures given by Herodotus and other ancient sources as unrealistic, resulting from miscalculations or exaggerations on the part of the victors.[xiii] Modern scholars’ estimates are generally 120,000 to 300,000, which are usually based on the studies of logistical capabilities of the Persians, the sustainability of the base of operations, and the overall manpower constraints.[xiv]
The Greek forces held back the Persian army until, at the end of the second day, its position was compromised by a Spartan traitor Ephialtes, who lead the Persians to a remote path behind the Spartans, resulting in the ultimate death of the 300.[xv]
At Thermopylae, it was a physical ground. In litigation, it is the conversion of that physically limited area to the manner and field by which the litigation is commenced and conducted.
In circumstances where ancillary claims are arguable but not the best IPR enforcement claim, it requires a dedicated discipline to resist the better resourced opponent by adding ancillary claims such as Australian Consumer Law claims and/or passing off. Adding these claims almost automatically has the effect of widening the field of engagement, so that there is additional strain placed on the SME’s resources in terms of costs and time dedicated to the proceeding.
Undoubtedly, there are practitioners who have adopted this strategy as their preferred methodology. However, it is suggested that these practitioners are in the minority, having observed numerous attempts at trial by correspondence, unnecessarily lengthy pleadings (of which the author admits guilt) and a number of arguable but not strong claims thrown in with a good claim.
The 300 strategy requires identifying the best claim/s.
For example, the best claim might be a trade mark infringement claim. Widening the fighting field by adding a passing off claim or a consumer claim under the Australian Consumer Law (“ACL”), which is contained in the Competition and Consumer Act 2010 (Cth) Schedule 2, opens up more expense and expands the fighting area, and is quite often added just as a precaution in the event the main claim does not stick.
Additional damages are available in each of the main intellectual property regimes, independently of compensatory damages. It has long been the case that under the Copyright Act 1968 additional damages in the nature of punitive damages, may be awarded as well as compensatory damages and the same position now applies under the other statutory intellectual property regimes.[xvi]
If the main claim is based on “deceptive similarity” of the respondent’s trade mark to the registered mark,[xvii] the likelihood is that if that claim fails the misrepresentation element of the passing off claim and s 18 misleading and deceptive contravention in the ACL, is also very likely to fail.
The 300 strategy is not simply applied to choosing the claims to be made. Often firms engage in lengthy correspondence over a range of issues, such as the pleading and discovery interrogatories. Smaller firms with limited resources compared to the opponent, and an IP owner with limited funds, find that a war by correspondence can be expensive. Accepting that a failure to respond will be detrimental to you if an interlocutory application is made, responses should be carefully crafted so as not to be brought out into the wider fighting field.
The 300 strategy dictates that you resist responding to every small point, but rather take a simpler approach of only engaging on the critical point/s. In short, the 300 strategy should be at least considered at every point of the litigation. This, it is suggested, is done by examining each step and asking, “will this open the fighting field, or is this an issue on which there is utility to engage?”
Does this constitute a distraction that the opponent wishes to raise whereby the resources of the IPR enforcer will diminish and/or it will place the alleged infringer in a stronger position?
In a recent case the IPR enforcing party engaged in lengthy correspondence over an alleged copyright claim. The claim was very weak. At one point, with costs mounting responding to lengthy letters, the alleged infringer determined the best strategy was to face any claim. No claim was ever made. Of course, a response to an IPR “cease and desist” letter is essential, however identification of the key weaknesses in the IPR claim can save substantial time and costs.
In another example, in a trade mark infringement action, a respondent claimed a defence to infringement claims by a set of circumstances whereby that respondent sought to amend its defence. The circumstances became the subject of an interlocutory application to amend the defence which was unsuccessful before the docket judge.
As a result, the respondent sought and obtained leave to appeal to the Full Court on a discrete point. Applying the 300 strategy, the applicant concluded that rather than have this side issue become the subject of an appeal to the Full Court of the Federal Court, it consented to the orders that the respondent sought to amend the respondent’s defence to accommodate the circumstances.
The question was remitted to Jagot J (as her Honour then was), being a judge other than the docket judge, and was dealt with as a special question under the Federal Court of Australia Act1976 (Cth) (FCA Act) s 37P, having regard to the overarching purposes described in Section 37M of the FCA Act, the Court having been satisfied that a question arising in the proceeding be heard separately from other questions arising in the proceeding.[xviii]
Control is limited for an SME who is named as a respondent in an IPR enforcement action. Those difficulties include:
There is no control over the number of claims which the applicant wishes to make.
A strategy to focus on the main claims only will leave the respondent open to an application for relief to end the proceeding or part of it early.
This does not prevent the respondent from adopting the 300 strategy to narrow the issues and the engagements.
Comparison of the 300 strategy with some other strategies
Sun Tzu
Sun Tzu was relevantly a Chinese general and military strategist living in the Eastern State of the Zhou Kingdom within the period of 770 – 256 BC. Sun Tzu has been traditionally credited as the author of The Art of War; an influential work of military strategy that has affected both Western and East Asian philosophy and military thinking.
Sun Tzu’s strategies have not been considered for their relevance in ancient times. In more modern times, direct adversarial engagements are reviewed as to their appropriateness in today’s world. It has been said in relation to US military theories:
“The majority of military theories that underpin modern U.S. strategy and doctrine are drawn from Napoleonic Era theorists who focused heavily on decisive battlefield conflict. In today’s post-information age, however, armed conflict represents the least likely manifestation of competition. Today, the use of coercive military force is limited by increasing international economic interdependence and global nuclear deterrence strategies. Consequently, the current strategic operating environment demands a deeper understanding of limited warfare tactics, competitive activities below levels of conflict, and information dominance to achieve strategic objectives. Sun Tzu’s seminal work, “The Art of War,” provides context that can help the United States better understand how to win without fighting, how to overcome a proclivity to utilize coercive force, and how to cultivate nonbinary understandings of war, peace, and competition.”[xix]
Sun Tzu proposed a tiered response to the opposition, a stratagem on these lines:
If our forces are ten to the enemy’s one, surround him.
If five to one, attack him immediately without waiting for some other advantage.
If twice as numerous, divide our army in two. This may draw criticism on the basis that dividing the forces into two violates a fundamental principle of war. However, it has been thought that Sun Tzu’s meaning is not suggesting weakening one’s force by dividing it, but rather that one part of the army may be used in the “regular way” and the other may be used for a special diversion.
If equally matched, we can “offer battle”.
If slightly inferior in numbers, we can avoid the enemy, which has been interpreted to mean “we can watch the enemy”.
If quite unequal in every way, quantitatively or qualitatively (or both), flee from him. The conclusion here is that “though an obstinate fight may be made by a small force, in the end it must be captured by the larger force.[xx]
The 300 strategy does not adhere to any of these layers of strategy. The first distinction is that each of these six strata are dependent on the size and skill of the opponent compared with your own force.
The 300 strategy is applicable to all instances and is most evident in relation to the final scenario: where instead of fleeing, because you have assessed that between you and the opponents, the opponent is quantitatively or qualitatively or both, superior in every way, it proposes to stay and fight, but to narrow the coal face of engagement.
The 300 strategy instructs us to remain, as this is where the strategy is most effective. This is where the intensity of the better financial resources and the better lawyers of the opponent cannot be as effective if the litigation teams met head on in an open field, where the parties engage on a wide number of issues.
There, where the fighting ground is wider, the smaller SME will be stretched to the maximum and seek resolution on even unfavorable terms, just to be out of the litigation which it commenced. Narrowing the scope of the battle issues, reduces the influence of the better resourced opponent.
Each stratagem is addressed in seriatim:
“If our forces are ten to the enemy’s one, surround him.”[xxi] The 300 strategy is directed to assisting an SME who is seeking to enforce their IPR against a Goliath-type respondent. Surrounding the enemy by widening the number of claims and widening the field of engagement will only lead to exhaustion of the SME’s resources, both financially and mentally, to continue the litigation. It will also empower the larger opponent. Accordingly, the SME should not attempt to surround the opponent and strain his/her resources. If the SME was to face an even smaller opponent, deliberately adopting a strategy to exhaust that smaller opponent by widening the fighting field, this cannot be consistent with the overarching purpose as stated in the FCA Acts 37M or the obligation imposed on practitioners under s 37N for the parties to act in accordance with that purpose. The application by the SME of the 300 strategy to an enforcement action against a party “smaller” than itself, such as a self-represented party, will only help narrow the issues and make for a more efficient proceeding.
“If five to one, attack him immediately without waiting for some other advantage.”[xxii]Again, this strategy is dependent on an assessment of the opposing force by the numbers and quality of the opponent. The 300 strategy does not support attacking based on an assessment of the capacity of the opponent. It is a strategy which applies regardless of the size of the opponent. It aims to narrow the scope of the “battlefield”. As to an approach of attacking, this will be limited to an attack within the scope of the boundaries set by the claims, being the scope of the dispute. The scope of the dispute by an IPR enforcement is in the hands of the applicant. It is common in IPR litigation for the scope to be widened by a cross-claim for revocation of the IPR, thus dissipating the infringement claim. For example, consistent with the 300 strategy, if there was an aggressive step to be considered by an applicant, this would most likely occur in the case of a summary judgment or default judgment application. However, given the fact that the 300 strategy aims to limit the scope of the engagement, a summary judgment, even if successful, in the hands of a strongly resourced respondent could lead to an application for leave to appeal the summary judgment and thereby widen the “battlefield” – a move contrary to the 300 strategy.
“If twice as numerous, to divide our army in two.”[xxiii] The comments in the preceding two paragraphs equally apply.It is of no consequence and should not be a temptation to increase the claims or attack the respondent on the basis that the IPR stakeholder is twice as well-resourced as the respondent. Using the processes available under the Federal Court Rules to exhaust a less resourced opponent compared to the SME, is in the author’s respectful opinion, to mis-use those processes for the impermissible motive of exhausting the opponent and not for their genuine application. It is also not consistent with the overarching purpose as stated in the FCA Acts 37M or the obligation imposed on practitioners under s 37N for the parties to act in accordance with that purpose.
“If equally matched we can ‘offer battle’”.[xxiv]This scenario has been interpreted and paraphrased “[i]f the attackers and attacked are equally matched in strength, only the able general will fight.”[xxv] This places emphasis on the quality and strength of the leadership. The 300 strategy does not respond to such a distinction. There may be an eminent Queens Counsel or Senior Counsel for the opponent, however if the battlefield is narrow, there is a much narrower scope for those skills to be fully displayed and forces an engagement only on the narrow scope of engagement, rendering the QC or SC’s considerable skill of lesser impact.
“If slightly inferior in numbers, we can avoid the enemy which has been interpreted to mean ‘we can watch the enemy’”.[xxvi]This strategy avoids conflict where there is a perceived slight imbalance in favour of the opponent by its fighting resources. This strategy would suggest to an SME IPR stakeholder to watch the opponent and its use of the contested IPR. This of course, due to the delay in taking enforcement action, would be detrimental to any interlocutory or interim application for injunctive relief. Another “watching” strategy is to fire several “cease and desist” letters across the respondent’s broadside without initiating a proceeding. The difficulty with this strategy against a better equipped opponent is that they may initiate proceedings under the groundless or unjustified threats provisions in the IPR statutory regimes.[xxvii] The SME would then be plunged into the litigation having to then prove that the threats (assuming they are determined to be threats) were justified by having to prove infringement.
“If quite unequal in every way, quantitatively or qualitatively or both, flee from him. The conclusion here is that ‘though an obstinate fight may be made by a small force, in the end it must be captured by the larger force’.[xxviii]This strategy accentuates and highlights the difference between Sun Tzu’s strategy and the 300 strategy. In litigation there is no doubt an SME will approach IPR enforcement against a well-resourced opponent with some hesitation. Such an opponent would, with its substantial resources, be expected to also retain top tier IP lawyers, and where necessary, experts in the relevant field. Such an SME should consider the advice of its IP lawyers and the planned conduct of enforcement action on the basis of the 300 strategy. Such an opponent will also have the means to challenge the IPR’s existence by cross-claim on any number of grounds relative to the IPR. If the IPR infringement claim is very strong, the SME might consider proposing to its IPR lawyers that the claim be taken on a speculative basis or supported by litigation funding. This will raise the issue as to whether the compensatory damages or the SME’s resources are sufficient to cover the shortfall between the actual costs and out of pockets, and a presumed order of costs on a standard basis. This action will of course, rest with the evaluation by the IPR owner’s IP lawyers considering whether to undertake the enforcement on a speculative basis, of the prospects of any cross-claim for revocation of the right, or any challenge to the claim to copyright originality, standing or ownership.
In this regard, the 300 strategy will have an additional benefit. The costs of a successful IPR claim would be likely to be reduced by unsuccessful ACL and passing off claims, not fully prosecuted.
Sun Tzu said that indirect tactics, efficiently applied, are inexhaustible and by analogy:
there are not more than five musical notes, yet the combination of these five give rise to more melodies than can ever been heard.
there are not more than five primary colours (blue, yellow, red, white and black), yet in combination they produce more hues than can ever be seen.
there are not more than five primary tastes (sour, acrid, salt, sweet, bitter), yet combinations of them yield more flavours than can ever be tasted.
in battle there are no more than two methods of attack – the direct and the indirect – yet these two in combination give rise to an endless series of manoeuvres … the direct and the indirect lead on to each other in turn … who can exhaust the possibilities of their combination?[xxix]
Clearly there are numerous, perhaps not endless, manoeuvres in litigation, however Sun Tzu’s approach to these did not depend on a single strategy, but rather an understanding that these many manoeuvres necessitated many alternate responses. The 300 strategy simply requires attention at all stages of a proposed litigation and its conduct to a narrower scope of engagement, a pruning. Thus, the combinations of indirect and direct actions which an opponent may generate are limited.
Those direct actions (such as cross claims for revocation) or indirect actions (such as interlocutory applications) will be advanced or defended, bearing in mind the constant awareness to narrow the scope of engagement.
For example, an offer of compromise. There will be, in a properly constructed offer under the principles of Calderbank v Calderbank, included grounds aimed to persuade the opponent to accept the offer.
The 300 strategy does not teach a strategy of non-response as a method of limiting the scope of the engagement, because the failure to respond to certain matters may be taken as a concession or admission.
The strategy does not support a continued practice of lengthy responses, a paper war or trial by correspondence. It does promote responses that are brief, but that summarise carefully each basis for rejecting the offer. Every sentence in response is to be scrutinised as to whether it is giving cause for the opponent to open up a battle by correspondence – an impermissible widening of the fighting face.
The strategy is mindful not to engage unnecessarily in the opponent’s points as if making a submission, but gives sufficient information to allow the Court to consider the point or points and conclude that they justify the position taken.
Clausewitz
Carl Philipp Gottfried von Clausewitz was a 19th Century Prussian general and military theorist who stressed the “moral” and political aspects of war. His most notable work, Vom Kriege, was unfinished at his death on 16 November 1831.
Clausewitz recognized that his ideas connected with other subjects not involving war. He is famous for the aphorism, “War is . . . nothing but a continuation of [politics] [by] other means.”[xxx] Vladimir I. Lenin referred to Clausewitz in these terms:
“We all know the dictum of Clausewitz, one of the most famous writers on the philosophy and history of war, which says: ‘War is a continuation of policy by other means.’ This dictum comes from a writer who reviewed the history of wars and drew philosophical lessons from it shortly after the period of the Napoleonic wars. This writer, whose basic views are now undoubtedly familiar to every thinking person, nearly eighty years ago challenged the ignorant man-in-the-street conception of war as being a thing apart from the policies of government and classes concerned, as being a simple attack that disturbs the peace and is then followed by restoration of the peace thus disturbed, as much as to say: “They had a fight, then they made up!” This is a grossly ignorant view, one that was repudiated scores of years ago … All wars are inseparable from the political systems that engender them.”[xxxi]
So too, litigation cannot be separated from the corporate or personal politics of the IPR owner/s in determining whether to initiate an enforcement proceeding. Market share, the costs of the litigation in financial, emotional and physical terms on the company or individuals, and the risk of losing a challenge to the validity of the IPR are paralleled in war.
The ambitions of a country through its leaders seeking to expand their borders or protect them, the costs financially, emotionally and physically on a country’s population and finally losing territory or worse, being occupied by the opponent or opponents, are factors to consider. For example, the decision of the French government in 1940 to notify Adolf Hitler that it wished to negotiate an armistice, involved, in part, a decision to avoid Paris being levelled and the loss of life and historic buildings. With Germany threatening to occupy Paris, the French government was forced to relocate to Bordeaux on 10 June 1940 to avoid capture, and declared Paris to be an open city the same day.[xxxii]
The 300 strategy in this scenario is, prior to the commencement of a proceeding, an appealing way for SMEs to approach enforcement of the IPR through litigation, where ‘best endeavours’ have failed to reach a resolution.[xxxiii] It is a method by which the SME IPR owner adopts, from as early as the usual ‘cease and desist’ letter, an approach to an IPR enforcement, which consciously militates against expanding the face of engagement.
The difficulty in a satisfactory resolution for the IPR holder at an early stage, is that larger corporations are reluctant to resolve matters on terms favourable to the IPR holder unless there is a substantial risk. The reality of exhausting the rights holder is a powerful consideration. However, there may be other issues which impact on resolution, such as the concern of an adverse public reaction if and when the judgment is published.
Napoleon Bonaparte
The Napoleonic Wars, (1799–1815) were a series of wars that ranged France against shifting alliances of European powers. Napoleon’s successes resulted from a strategy of moving his army rapidly, attacking quickly, and defeating each of the disconnected enemy units. Rather than spreading the heavy artillery out over a greater area to support the infantry, Napoleon used lighter field guns which were lightweight and more versatile, allowing them to be relocated quickly on the battlefield. These field guns would often come together to make a single battery:
Napoleon’s grasp of mathematics as well as tactics and command made him a skilled artillerist. It was in this branch of the military that he began his rise to power. By using artillery to quell a riot in Paris, he gained the favor of the government.
Unsurprisingly, he was an innovator in this field. He pushed the French military toward field guns which were on average a third lighter than those of their British opponents. This allowed the guns to be moved quickly around the battlefield and used to their best effect.
He also focused the power of his guns. Instead of spreading them out to provide support for the infantry, he collected large mobile batteries. Their coordinated firepower could make significant dents in enemy formations. This was the predecessor of the ever-growing batteries of the next hundred years.[xxxiv]
Napoleon’s strategy of outmanoeuvring the opponent by swift movements of his army and attacking quickly with the support of a very mobile artillery force is inconsistent with the 300 strategy. Court processes militate against ambush or surprise. Unlike the swift movements of the French army engaging at a number of locations swiftly, the 300 strategy focusses on a steady series of deliberate engagements within a confined area. Applying the Napoleonic strategy to litigation would equate to a series of swift and varied attacks over a greater face of fighting area thereby inviting engagement at a number of litigation locations.
The 300 strategy seeks to limit the wider scope of the matters of contest, thereby diminishing the effective full force of the opponent.
It has been said in relation to modern military theory that war is divided into strategic, operational, and tactical levels thought to have found its basis in the Napoleonic Wars and the American Civil War.[xxxv]
Referring to the Doctrine for the Armed Forces of the United States,[xxxvi] the ‘Three Levels of War’ article states:
“The tactical level of war involves the planning and execution of battles and engagements by the “ordered arrangement and manoeuver of combat elements in relation to each other and the enemy to achieve combat objectives.”
Litigation identifies with these multi-levels of consideration with costs in terms of actual financial outlay, the risk of adverse costs orders and the time dedicated to the litigation being factors in the operational considerations. However, unlike these Levels of War, Court Rules and Practice Notes import the element of justice levelling the fighting field. The 300 strategy further narrows that field.
WWII – Blitzkrieg
Blitzkrieg, meaning ‘Lightning War’, was the method of offensive warfare responsible for Nazi Germany’s military successes in the early years of the Second World War. Blitzkrieg combined forces of tanks, motorised infantry and artillery to penetrate an opponent’s defences on a narrow front, bypassing pockets of resistance and striking deep into enemy territory.[xxxvii]
This method was used with great success by the German army in Poland in 1939 and in France in May1940:
The French had been preparing to defend the Meusefor years, but the effort had taken on an earnestness in September 1939, when the Wehrmacht had unveiled its “blitzkrieg” tactics for the first time against Poland. The Nazis had defeated the Polish armed forces in just over four weeks, using a combination of mobile troops, armored firepower and paralyzing air attacks featuring the terrifying Stuka dive bombers.[xxxviii]
Prior to May 1940, the combined French and British forces had almost one thousand more tanks than the Germans. French tanks were also superior to the German tanks, with better armour and more powerful main guns. France was also known as a global leader in artillery. The French planned to rush large numbers of infantry divisions across the border of Belgium to take on the Wehrmacht as far forward as possible.[xxxix]
The Blitzkrieg, as Napoleon’s strategy of swift mobile movements, designed to avoid a long war, was successful because the swiftness was focussed on a narrow area of attack, which necessarily, had the advantage of being a surprise. The speed through narrow focal points emphasised the surprise element. It has been said of this swift and concentrated attack:
Germany unleashed its blitzkrieg tactics during the Battle of France to great success. This tactic saw German forces move at an incredible pace and overwhelm the Allied forces wherever they met. The battle began when German forces invaded France through the Ardennes Forest near southern Belgium.
France had spent the years after World War I preparing a line of defences along its border that it shared with Germany. This defensive line was called the Maginot Line and ran from the Switzerland Alps in the south to the Ardennes Forest; however, it did not extend north to the British Channel. France believed that the Ardennes Forest was too thick for German tanks and forces to move through and did not extend the Maginot Line any further north.
The German attack through the Ardennes Forest (codenamed Case Yellow) caught Belgium, Britain and France by surprise. The German forces were able to easily push their way through the Ardennes Forest and moved at a surprisingly fast pace.[xl]
The German blitzkrieg strategy of 1939 and 1940 depended on the element of surprise. Its inferior tanks were more than compensated by the speed of the German blitzkrieg attack. The expectation of the French was that, with the known German tank and artillery capabilities, the German forces were not expected to progress with lightning speed as they did. German troops overran Belgium, the Netherlands, Luxembourg, and France in six weeks starting in May 1940.[xli]
There is however, an obvious difference between war and litigation. An advantage in war is to attack the opposing force by surprise. A purposeful attack, after having planned the manoeuvres with precision, has usually gained an advantage over an unprepared adversary. The surprise military strike by the Imperial Japanese Navy Air Service upon the United States against the naval base at Pearl Harbor in Honolulu, Territory of Hawaii, at 8.00am on Sunday morning, 7 December 1941, is such an example.
It is not intended to reduce the gravity of that attack by drawing an analogy with civil litigation, however it is clear there is no place for surprise attacks in the process of litigation. The Federal Court Rules 2011 (Cth) (FCR), regulate that a party must plead a fact if failure to plead the fact may take another party by surprise.[xlii]
Within the FCA Act, the rules of Court and the Practice Notes issued by the Chief Justice of the Federal Court reflecting the Court’s expectations in the conduct of matters before the Court, there are numerous strategies within the FCR: for example, summary judgment applications[xliii] and preliminary discovery applications, but these are almost all on notice.[xliv] Those actions not on notice such as search and seizure applications, will be interim measures giving the respondent an opportunity to respond.
Another example of the advantage of narrowing the corridor of battle, is seen when the Allied forces pushed into Belgium in May 1940 to meet the German blitzkrieg. On the French Belgium border, the German troops had assembled the largest mechanised force the world had seen to that point in time. The German Ardennes plan, authored by General Franz Halder, the chief of staff of the German Army, was to cross into France via the Ardennes. The traditional route would have meant a war of attrition with the French, with poorer prospects of success. The Allied forces anticipated the move and pushed their best forces to meet the attack, however reconnaissance planes transmitted confusing news to Allied command. The report was a traffic jam of some 250km in length and stretching from the road to the Ardennes, back to the German border. It was said that the French Commander-in-Chief General Gamelin refused to believe the reconnaissance report, and the opportunity to change the course of the war by attacking this gridlock dissipated.[xlv]
This large mechanised force became critically exposed due to the geographic circumstances which created an engagement face, thus removing the advantage of the substantial force behind the attack. Like Thermopylae, the additional forces were rendered ineffectual. Confinement of the issues in most IPR cases is possible in the hands of the IPR applicant.
Of course, the IPR applicant does not have the same power to limit the claims when a cross-claim seeking the revocation of the IP right is brought. Having said that, cross-claims for revocation are far more common than the simple defence of the infringement action, which raises the question of the genuine strength of the cross-claim. Put another way, if a cross-claim is brought in most IP infringement cases, one must assume that a percentage of those cross-claims are strategic and not seriously based on substance.
Conclusion
Without in any way seeking to imply that the ferocity and tragedy of war is diminished by making a comparison with litigation, there are lessons to be learnt from war in a positive and helpful way for litigants involved in Court proceedings. If strategies used in war can have a positive impact in resolving a matter or matters before the Court, then the end justifies the means.
In this paper the author has focused on the Battle of Thermopylae as a battle that informs a technique which is not only consistent with the objectives of the FCA Act ss 37M and 37N, but also eases the financial personal burden on an SME seeking to enforce IPR, particularly against a better resourced opponent.
The goals are attained by adopting a policy in the litigation from the beginning, of limiting the area of engagement. The strategy will be tested. The opponent, particularly larger corporations and larger legal firms acting for them, will in many cases seek to exhaust a smaller IPR stakeholder by applications, lengthy correspondences and in the programming of matters in preparation for trial.
The 300 strategy requires constant examination of the responses to the opponent’s communications and its use of Court processes. There will be a natural “pull” to respond, and indeed each situation must be examined because silence is rarely a helpful response. However, in many cases it is not essential to follow the path the respondent seeks to draw out, and such attempts may be dealt with simply.
[iii]Litigation as War, James W. Gould Litigation Summer 1991 Volume 17 Number 4 (Crump) found at https://www.jstor.org/stable/29759486 ; “Litigation Rules, Clausewitz, and the Strategies of War”, D. Crump, Elon Law Review Vol.9:1 found at: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://eloncdn.blob.core.windows.net/eu3/sites/996/2019/07/1-22_crop.pdf page 2.
[iv]Killer Queen, LLC v Taylor [2024] FCAFC 149; (2024) 306 FCR 199 at [4].
[vi] “’Sue the bastards – leave no stone unturned – I don’t care about the cost – this is war.’ When you hear these words from a client, resist the temptation to take them to heart and file the complaint immediately…”: Litigation as War”, J W Gould, Vol. 17, No. 4 (Summer 1991), p 31 found at https://www.jstor.org/stable/29759486 .
[vii] Sun Tzu was a Chinese general, military strategist, writer, and philosopher who lived in the Eastern Zhou period of ancient China. Sun Tzu is traditionally credited as the author of The Art of War, (translated by Lionel Giles) an influential work of military strategy referred to by both Western and East Asian philosophy and military thinking. Sun Tzu concentrated on alternatives to battle, such as stratagem, delay, the use of spies and alternatives to war itself, the making and keeping of alliances, the uses of deceit, and a willingness to submit, at least temporarily, to more powerful foes: https://en.wikipedia.org/wiki/Sun_Tzu
[viii]The Art of War, Sun Tzu, HarperCollins, 2013 p 9 (“the Art of War”); The Complete Art of War, L. Giles, Wilder Publications 2008, First Edition (“CAW”) p 15.
[x] Thermopylae: The Battle, Cartledge, Paul (2007) Thermopylae: the battle that changed the world (1. Pbk.ed). London: Pan. p 224 ISBN 9780330419185.
[xi] They Died the Spartan’s Death, Thermopylae, the Alamo, and the Mirrors of Classical Analogy, Advances in the History of Rhetoric, Cox, Jeremy (2016).
[xxvii]Copyright Act 1968 (Cth), ss 202 and 202A; Patents Act 1990 (Cth), ss 128–132; Trade Marks Act 1995 (Cth), ss 129–130A; Designs Act 2003 (Cth), ss 77–81; PBR Act, ss 57A, 57D, Circuit Layouts Act 1989 (Cth), s 46; Olympic Insignia Protection Act 1987 (Cth), ss 64 and 65.
[xxxvii] The Imperial War Museum available at: https://www.iwm.org.uk/history/the-german-lightning-war-strategy-of-the-second-world-war#:~:text=Blitzkrieg%2C%20meaning%20’Lightning%20War’,of%20the%20Second%20World%20War.
Over the past four years, Queensland’s Court of Appeal has allowed five appeals in criminal fraud cases because of insufficient directions to the jury on the defendant’s “knowledge, belief, or intent” that is alleged to have caused the defendant’s conduct to be dishonest. Fraud trials are often long, making the burden of a retrial on prosecution witnesses, the Court, and the defendant significant.
Is it that hard to articulate what knowledge, belief, or intent held by the defendant rendered her conduct dishonest? Well, it just requires careful thought about the elements of the offence, the particular facts that are said to satisfy each element, and the evidence said to prove those facts. That is often easier said than done.
This article will summarise the facts and issues that resulted in retrials being ordered in each of these matters in an attempt to identify common mistakes and how they might be avoided.
But first, it is useful to review some of the basics of fraud offences.
Knowledge, belief, or intent
An essential element of a criminal fraud is that the defendant acted dishonestly.
Some fraud offences (including s 408C of the Criminal Code (Qld)[1] and dishonesty offences under the Corporations Act 2001 (Cth)) use the test for dishonesty articulated by the High Court in Peters v The Queen (1998) 192 CLR 493 (“Peters”). Under the Peters test, the prosecution must prove:
The defendant had acted dishonestly according to the standards of reasonable and honest people.
Dishonesty offences under the Criminal Code (Cth) (by reason of legislative intervention) use the older common law test articulated in R v Ghosh [1982] QB 1053 (“Ghosh”).[2] Under the Ghosh test, the prosecution must prove two things:
The defendant had acted dishonestly according to the standards of reasonable and honest people; and
The defendant realised that that his/her conduct was dishonest according to the standards of reasonable and honest people.
A common mistake, in the writer’s experience, is for the Peters test to be misunderstood as being ‘objective’ in the sense of not requiring the defendant’s mental state to be established. This is not so. The additional element under the Ghosh test is proof that the defendant realised that the conduct was dishonest according to the standards of reasonable and honest people. On both tests it must be shown that the defendant’s conduct was ‘subjectively’ (that is, as a mental state of the defendant) dishonest.
For an act to be done dishonestly (whether on the Peters test or the Ghosh test), there must have been some knowledge, belief, or intent on the part of the accused person rendering the act dishonest.
The phrase “knowledge, belief or intent” is found in Toohey and Gaudron JJ’s judgment in Peters: [3]
In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.(footnotes omitted)
This was recently applied by Bond JA in R v Mirotsos [2022] QCA 76:[4]
Yet the law is clear that in a case of this nature, the Crown must articulate clearly the relevant aspect of the accused’s knowledge, belief or intent which, on the Crown case, rendered the accused’s conduct dishonest and the trial judge must:
identify for the jury the knowledge, belief or intent of the accused which was said to render the impugned conduct by the accused dishonest; and
instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the conduct was dishonest by the standards of ordinary honest people.
A simple example is this: Gomez tells Morticia that, if she gives him $20,000, he will invest it in shares on her behalf. Morticia gives Gomez the $20,000 on this basis. Gomez knows that Morticia has given him the $20,000 on this basis. However, when he told Morticia that he would invest her $20,000, Gomez knew he would use it to buy cigars for himself. Once he had received Morticia’s $20,000, he bought the cigars for himself.
Applying the language in paragraph (a) of Bond JA’s formulation in Mirotsos, the “impugned conduct” is Gomez’s purchase of the cigars. The “knowledge belief or intent” that the Crown would rely upon to render Gomez’s conduct dishonest is Gomez’s knowledge that Morticia gave him the $20,000 on the basis that he would invest it in shares on her behalf.
The judge must identify Gomez’s alleged knowledge for the jury and then instruct the jury to decide whether they are satisfied that Gomez did in fact have that knowledge. If they are so satisfied, the jury must then consider whether Gomez’s obtaining of Morticia’s $20,000 by saying it was for investment in shares, but then using it to buy cigars, was dishonest by the standards of ordinary honest people.
Trials involving both Criminal Code (Qld) and Criminal Code (Cth) frauds
In trials where a defendant is charged with frauds against both the Commonwealth and Queensland Criminal Codes, the jury must apply the Peters test when determining whether the defendant was dishonest for the State count, and apply the Ghosh test when deciding whether the defendant was dishonest for the Commonwealth count. The trial judge must direct them accordingly.
An example of this is the case of R v Hoch [2023] QCA 179, where the defendant (amongst other offences) was on trial for one offence against s 408C Criminal Code (Qld) and one offence of general dishonesty against 135.1(1) Criminal Code (Cth). The trial judge directed the jury adequately in relation to the State count but failed to direct the jury on the definition of dishonesty for the Commonwealth count. A retrial was ordered for the Commonwealth count.
The Court of Appeal’s consideration of knowledge, belief, or intent
With that background in mind, I will now turn to consider the relevant cases in Queensland where problems directing juries on dishonesty have arisen. In these cases, the Court of Appeal has repeatedly identified a failure by the prosecution to particularise what they say the defendant’s state of mind (knowledge, belief or intent) was at the time of the conduct, which rendered the conduct dishonest. The trial judge, in turn, has failed to direct the jury on the knowledge, belief or intent that, on the Crown case, the defendant must have held at the time of the conduct to render the conduct dishonest.
R v Lyons [2021] QCA 136
Lyons is an interesting case because the Court of Appeal split on the question of adequacy of directions in relation to knowledge, belief or intent.
The appellant in Lyons was the director of a company whose business included arranging sea freightage of boats purchased overseas. She was charged with eight counts, each involving a different complainant. The Crown alleged that, in each count, she received monies from the complainant for a specific purpose, and dishonestly used those funds for unauthorised purposes.
In Counts 1-3, the complainants transferred funds into an account the appellant used for currency conversion to assist with their boat purchase. The Crown alleged the appellant then used the funds for unauthorised purposes such as supporting her business.
In Counts 4-8, the appellant engaged a company to freight boats to Australia. The complainant in each of those counts gave her funds for the freighting. The appellant paid the freighting company a 30% deposit for the freightage, but failed to use the funds given to her by the complainants for this purpose to pay the balance, meaning the five complainants had to pay part of the freight cost twice.
The trial judge’s summing up of the prosecution case on the appellant’s dishonesty was brief. In relation to Counts 1 and 2, his Honour summed up the prosecution’s case as “the defendant used the moneys handed over by the complainants for purposes other than that which was authorised by the complainant”.[5] In relation to Count 3, his Honour referred to the defendant’s evidence, which was that she paid the money because of an administrative error. His Honour did not outline the Crown’s case when summing up Counts 4 – 8.
Mullins P, McMurdo JA, and Wilson J all agreed that the trial judge did not direct the jury regarding the appellant’s alleged knowledge, belief or intent for Counts 4 – 8. Mullins P and Wilson J shared the view that the directions in relation to Counts 1-3, while better than Counts 4 – 8, were still insufficient. McMurdo JA disagreed on this point. His Honour observed that “more detailed directions might have been given”,[6] but concluded the trial judge’s summing up of Counts 1-3 was sufficient for the jury to understand their task.[7]
The trial judge’s directions in Lyons complied with the Supreme and District Court Bench Book as it was at the time.[8] Wilson J noted that, at the time of the trial and appeal, the Bench Book entry on fraud did not refer to Peters. [9] This Bench Book entry has since been amended and includes reference to Peters.
R v Davidson [2022] QCA 22
In Davidson, the appellant was the general manager of a company. She gave the company’s payroll officer a letter purportedly signed by the company’s director advising that her [the appellant’s] annual salary had been increased. The signature on the letter was an electronic signature. Based on the letter, the payroll officer increased the appellant’s salary payments, with the increased rate being paid over approximately a year. It was not in dispute at trial that the director had not signed the letter.
The Crown focussed on the state of mind of the director and whether he knew about or authorised the pay increase. While the director’s state of mind was relevant, that was not the critical issue for the jury. The critical issue was the appellant’s state of mind.[10] The appellant’s state of mind informed whether the appellant’s conduct was dishonest.
The trial judge’s directions regarding dishonesty only referred to the jury being satisfied that the appellant did the act “with a particular state of mind”. The state of mind, or the “knowledge, belief, or intent” was not identified.
Bond JA, with whom Fraser and McMurdo JJA agreed, concluded that the Crown did not clearly articulate the knowledge, belief or intent relied upon to render the appellant’s act dishonest. His Honour further concluded the trial judge did not adequately direct the jury on this issue.[11]
R v Mirotsos [2022] QCA 76
In Mirotsos, the appellant was a director and shareholder of a private property development company. The Crown alleged that he dishonestly used company money or dishonestly gained or attempted to gain company money for himself. It was alleged he did this in a variety of ways. For the purpose of this article, one example suffices.
The Crown had particularised the appellant’s conduct as dishonest because “the expenditure was not authorised by the complainant company and/or was not for a legitimate purpose of the complainant company”. The Crown had not articulated, however, what the appellant’s knowledge, belief or intent was as to whether the expenditure was authorised by the company, or as to the legitimacy of the purpose of the expenditure.[12]
The trial judge’s direction on dishonesty only referred to the fact the jury would need to be satisfied there were facts, beliefs or circumstances the defendant was aware of before deciding whether the defendant’s conduct was dishonest by the standards of ordinary people.[13]
On appeal, Bond JA, with whom Sofronoff P and Callaghan J agreed, said the trial judge’s directions were inadequate. The trial judge was required to identify the facts or belief or circumstances actually relied upon by the Crown.
R v Jayaweera [2022] QCA 103
In Jayaweera, the appellant was the director of a financial planning agency and a director of several companies involved in an abalone farm. For each count it was argued that the appellant either dishonestly made misrepresentations to clients about how he would invest their money or that he made unauthorised transfers from their self-managed superannuation accounts.
Fraser and Bond JA[14] allowed the appeal on the basis that the Crown failed to articulate the appellant’s knowledge, belief or intent relied upon to establish that the impugned conduct was dishonest.
In turn, the trial judge failed to give adequate directions on this point, including failing to refer at all to the need for the jury to reach a particular conclusion about the appellant’s state of mind.
Their Honours made the point that not all misrepresentations are made dishonestly, and not all unauthorised transactions are made dishonestly.[15]
R v Muller [2024] QCA 261
The identification of knowledge, belief or intent in Muller was complicated by the fact that the appellant was charged as a party to another, Mr King, under s 7 Criminal Code (Qld).
Mr King had already pleaded guilty to frauds. The Crown relied on Mr King’s plea of guilty to prove that Mr King had committed the offences as principal. The Crown did not, however, particularise the knowledge, belief, or intent Mr King held when doing the dishonest acts.[16] On appeal, it was argued that, even though Mr King’s dishonesty was proved by virtue of his guilty plea, the facts underlying that plea had to be articulated to the jury so they could determine whether the appellant (as party to Mr King) knew the essential facts and circumstances that established the offence committed by Mr King.[17]
Brown JA, with whom Mullins P and Flanagan JA agreed, concluded that the particulars, and in turn the judge’s directions to the jury, did not adequately address Mr King’s relevant state of mind at the time of performing the acts of which the appellant was alleged to have had knowledge.[18]
Summary of the Court of Appeal authorities
Each of the cases above involved directions that the Court of Appeal considered insufficient. Davidson, Mirotsos, Jayaweera, and Muller also had the additional failure of the Crown not properly particularising what knowledge, belief or intent they alleged the defendant had at the time of the relevant conduct. The jury must be told what the defendant knew which made their conduct dishonest.
Do not expect the proviso to assist
The Court of Appeal may dismiss an appeal, even if it considers that one or more grounds argued should be found in the appellant’s favour, if the Court considers no substantialmiscarriage of justice has occurred.[19] This is referred to as the “proviso”. [20]
In Muller, Mirotsos and Jayaweera, the Crown unsuccessfully argued that the proviso should be applied. In each case, the Court of Appeal concluded the proviso did not apply because a direction on a critical element, dishonesty, was in error and the appeal court would have to carry out an assessment of the whole of the record to decide whether no substantial miscarriage of justice had actually occurred.[21]
Conclusions
A few lessons can be taken from all of this.
First, when you receive a fraud brief, know which definition of dishonesty applies. Check both the offence provision and the relevant statute’s definitions as at the date/s the offence was allegedly committed. Frauds can be committed over lengthy periods of time. Investigations can take just as long. Ensure you know the standard that applies.
Second, prosecutors must ensure they have properly particularised the knowledge, belief or intent of the defendant that is said to give rise to the dishonesty.
Third, if confronted with inadequate particulars, defence counsel should consider whether to request further and better particulars. You must know the case against you in order to take instructions and properly prepare your own case. On the other hand, if it is apparent that there is no evidence to establish a dishonest knowledge, belief or intent, it may instead be prudent to leave the issue until the Crown has closed its case so as to avoid the Crown obtaining further evidence. A no case submission could then be made.
Alternatively, defence counsel could apply under s 590AA for a pre-trial ruling that the Crown cannot prove an element. The obvious risk in this course is that the Crown would fix its case by obtaining further evidence. A circumstance in which it might be appropriate to seek the ruling pre-trial is where the evidence is overwhelmingly documentary and unlikely to change at trial.
Fourth, both prosecutors and defence counsel are obliged to inform the Court if they consider the directions given to the jury do not properly describe the knowledge, belief, or intent relied upon by the Crown.
Finally, while the Bench Book is an excellent recourse, certain cases call for directions beyond the helpful template the Bench Book provides.
[1]R v Dillon; Ex parte Attorney-General (Qld) (2016) 1 Qd R 56
[7] His Honour concluded a re-trial was warranted for Counts 4 – 8, though, because of an omission to give the “separate consideration” direction – see [2]-[4]
[14] Callaghan J would have allowed the appeal on the basis of an incompetency of counsel, but agreed with Bond JA’s judgment in R v Mirotsos and agreed “in broad terms” with the observations made by Fraser and Bond JJA in their judgment at [16]-[17] at [113]
[20] See R v Tahiata [2024] QCA 59, where Flanagan JA summarises the principles in relation to application of the proviso.
[21] In Jayaweera, Callaghan J identified a number of reasons why the proviso could not apply at [124]-[134]. The Crown did not argue for the application of the proviso in Lyons (see [15]).
It is well-accepted that the power to strike out a pleading is to be exercised with caution. However, that will not stop a court from striking out a pleading if it is appropriate to do so, even were no defence has yet been filed. In Rose v Secretary of the Department of Heath and Aged Care [2025] FCA 339, Katzmann J struck out the applicants’ third further amended statement of claim without leave to replead in a class action brought against the Commonwealth and four officers related to the approval of certain COVID-19 vaccines. The decision serves as a timely reminder of the principles to keep in mind when drafting pleadings.
The relevant principles were set out in paragraphs 34 to 59 of the judgment and include the following:
The function of a pleading is to state, with sufficient clarity, the case that a party must meet thereby rendering procedural fairness, as well as defining the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286 cited with approval in Fuller v Toms [2012] FCAFC 155 at [17].
The key features of pleadings include the following matters. First, a pleading must be as brief as the nature of the case permits: r 16.02(1)(b) of the Federal Court Rules 2011 (Cth). Second, it must identify the issues the party wants the Court to resolve: r 16.02(1)(c). Third, it must state the material facts on which the party relies that are necessary to give the opposite party fair notice of the case against it but not the evidence by which the material facts are to be proved: r 16.02(d). Fourth, it must state the provisions of any statute relied on: r 16.02(e). In addition, a pleading must not ask for relief that is not claimed in the originating application: r 16.02(4).
Not all relevant facts are “material facts”. A fact is material if it is essential to prove that fact in order to make out the cause of action or put another way, it is an element of the cause of action.
Where serious allegations of dishonesty, fraud or acting with malice or bad faith are made, the allegations must be pleaded “specifically and with particularity”: Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [56]. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it not made out: r 64 of the 2011 Barristers’ Rules (Qld).
A pleading must not: (i) contain any scandalous material; (ii) contain any frivolous or vexatious material; (iii) be evasive or ambiguous; (iv) be likely to cause prejudice embarrassment or delay in the proceeding; (v) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (vi) otherwise be an abuse of process of the Court: r 16.02(2). These categories overlap. A pleading is “likely to cause prejudice, embarrassment or delay” where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him” (Meckiff v Simpson [1968] VR 62 at 70); if it merely asserts a conclusion to be drawn from facts which are not stated (Trade Practices Commission v David Jones (Australia) Pty Ltd(1985) 7 FCR 109 at 114–115); if it contains inconsistent or irrelevant allegations or alternatives that are “confusingly intermixed” (Shelton v National Roads and Motorists’ Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18]).
A party cannot be expected to respond to mere context, commentary, “history, narrative material or material of a general evidentiary nature”: Fuller v Toms [2012] FCAFC 155 at [83].
In respect of the pleading before her Honour, Katzmann J said:
Should the third further amended statement of claim be struck out?
[61] The answer to this question is an empathic yes. This is a clear and obvious case.
[62] It is true, as the applicants submitted, that this is a complex case. But the 3FASOC makes it impossibly complex, so much so that it defies the fundamental principles of pleading. It is not only likely to cause prejudice, embarrassment and delay, it is inevitable that it will have those results. Large parts of it are incoherent, unintelligible, ambiguous, impenetrable and/or expressed at a high level of generality. In critical aspects it lacks precision. It suffers from both narrative prolixity and the inclusion of irrelevant detail such that it is not a pleading to which the respondents can reasonably expect to plead. In argument at the hearing senior counsel for the applicants candidly and accurately described it as “tortuous”. He expressed “trepidation” at the “[un]pleasant exercise” of taking the Court to it. It is a pleading of the kind described by Perram J in Stewart v Deputy Commissioner of Taxation [2010] FCA 402; 76 ATR 66; 367 ALR 637 at [33]:
[It] is filled with irrelevancies and allegations which reveal the absence either of comprehension or application or both. The task of identifying what, if any, case the applicants have has been very much hampered by the pleadings put forward on their behalf, which is, of course, precisely the opposite effect which pleadings are intended to achieve see: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [148] per Black CJ, French and Tamberlin JJ. Anyone who seeks to wrestle with the mysteries of the proposed further amended statement of claim will see that it is more akin to a Chinese puzzle box than a succinct statement of the applicants’ cases.
[63] To allow the case to proceed on the present pleading or anything like it would not be the way that best promotes the overarching purpose of the civil practice and procedure provisions – far from it. Rather, to refrain from striking out the pleading would be to act in defiance of that purpose.
…
[66] The 3FASOC is replete with recitations of immaterial facts; untethered, acontextual references to legislation; and a morass of infuriating cross-referencing which makes the critical allegations nigh impossible to decipher. Reading it is a herculean task. Trying to make sense of it could drive the reader mad. Identifying the material facts is like looking for a needle in a haystack. It would be oppressive to require the respondents to plead to it. If it were permitted to stand, it would likely severely delay a fair trial and prejudice the respondents in attempting to mount a defence: see Fuller v Toms at [18].
[67] It beggars belief how some of the allegations could be made, such as the allegations about the state of knowledge of “the public officers and the Australian public” (in para 69). Some of the allegations are tendentious.
[68] The schedules are confusing and, in some instances, misleading. Some of them have no place in a pleading and merely serve to contribute to the prolixity of the document.
[69] Frequently, rolled-up allegations are made in a single paragraph.
[70] Frequently, too, allegations are pleaded in a cascading series of alternatives apparently seeking to cover every conceivable way a respondent might or might not have engaged in certain conduct….
On 16 May 2025, The Law Commission of England and Wales published a detailed report arising from the first comprehensive review of the Wills Act of 1837 in almost 200 years.
The recommendations are noteworthy, and a draft Bill involving a complete rework of the Wills Act has been produced.
The content and course of the draft Bill through Parliament will be followed with interest in Australia.
The wills project of the Law Commission commenced in 2016.
The Law Commission concludes in its report that reform is needed in a number of respects, and notes that:
The principle of testamentary freedom is a valuable aspect of owning property, giving owners the right to give their property to others on their death;
Whilst the law governing wills is old, its age alone would not be a good reason to reform the law;
“[M]any of the rules governing wills achieve policies or safeguards that reflect human nature and commonly held beliefs that remains as true or necessary today as they were in previous centuries.”
The summary of the report includes:
“However, some things have changed. Most people will live longer than their ancestors did, and, as a consequence, more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age. The property that the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only; but documents in electronic form are now far more prevalent than paper documents. We therefore think that reform is necessary.”
The Law Commission stated the aims of the project were to make recommendations to reform the law so that it better:
Supports the exercise of testamentary freedom;
Protects testators, including from undue influence and fraud; and
Increases clarity and certainty in the law were possible.
Areas where recommendations were made for change include as follows.
Dispensing power
Giving the Court a dispensing power to order a will be valid despite not complying with formality requirements – such as provided for in s.18 of the Succession Act 1981 (Qld);
Age of testator
Reducing the age of a person being able to make a valid will from 18 to 16;
Rectification
The Court being able to rectify a will where it is satisfied that the will does not given effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will – as with that provided for in s.33 and s.33A of the Succession Act;
Statutory presumption of undue influence
Introduce a statutory presumption of undue influence, whereby “if the Court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the Court, on the balance of probabilities, that undue influence did not take place, and that the will did in fact reflect the testator’s own freely formed intentions”.
The proposed section 15 of the Bill to new Wills Act relating to testamentary undue influence states as follows:
15. Testamentary undue influence
(1) Subsection (2) applies if, in proceedings on a probate claim—
a party alleges in any particulars of claim, defence or other statement of case that a person exerted undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will, and
there is evidence which provides reasonable grounds to suspect that the undue influence was exerted.
(2) In deciding the claim, the court may find the undue influence to have been exerted unless the contrary is proved on the balance of probabilities.
(3) In determining whether there is evidence which satisfies subsection (1)(b), the court must (among other things) have regard to any evidence about—
the conduct, in relation to the making of the will or change, of the person alleged to have exerted undue influence over the testator;
any relationship of influence between the person and the testator;
the circumstances in which the will was made.
(4) For the purposes of this section a person exerts undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will if the will or change is made as result of the person overpowering the testator’s volition (without convincing the testator’s judgment).
(5) In this section “probate claim” means any claim relating to the business of obtaining probate and administration, other than non-contentious or common form probate business (within the meaning of Part 5 of the Senior Courts Act 1981 (see section 128 of that Act)).
(6) Nothing in this section prevents a court from finding undue influence to have been exerted as a result of an allegation in subsection (1) being proved on the balance of probabilities.
Invalidating a gift
The rule invalidating a gift in a will to a witness, or to their spouse or civil partner (of that witness) should also be extended to the cohabitant of a witness, the person who signed the will on behalf of the testator and the spouse, civil partner or cohabitant of a person who signed the will on behalf of the testator.
However, the Court can save such a gift if it considers it just and reasonable to do so having regard to the conduct of that person relating to executing the will or proving the will’s validity.
Effect of marriage or civil partnership
The rule that marriage or civil partnership revokes a will should be abolished.
The Law Commission reason for this includes:
“most people do not know about this automatic revocation rule. The result is that testators’ wills are being revoked without their knowledge, and without testators necessarily wanting their will to be revoked”;
Further, “we are concerned that the rule that marriage revokes a will is possibly being exploited for the purpose of enabling “predatory marriage” ”;
“we therefore believe that abolishing this rule will add a layer of protection for vulnerable people at risk of this insidious form of financial abuse”.
In Queensland, a will is revoked by the marriage of a testator pursuant to s.14(1) of the Succession Act.
Testamentary capacity
The test for whether a person has the mental capacity necessary to make a will is currently that as set out in the English case Banks v Goodfellow (1870).
The Law Commission notes that the Mental Capacity Act 2005 (MCA) provides the current test for whether a person has mental capacity to make a decision in many areas of their life, covering a broad range of financial and warfare decisions that may need to be taken on behalf of a person who lacks capacity.
The Law Commission states:
“The MCA creates a presumption that a person has capacity unless it is shown that they do not. It sets out a two-stage test. First, the MCA sets out the circumstances in which the person is taken to be unable to make a decision for themselves, because they are unable to understand the information relevant to the decision; retain that information; use or weigh that information as part of the process of making the decision; or communicate the decision. Second, the person’s inability to make decision as defined, must be caused by an impairment of the mind or brain, or a disturbance in their functioning. Where parts of the tests are satisfied, the person lacks capacity in relation to the specific decision. This lack of capacity can be temporary or permanent….”
The Law Commission continues further:
“There are wider benefits of including will-making within the scheme of the MCA as a whole. The MCA test provides a clear test of capacity. Adopting the MCA test will ensure that developments in the law on capacity generally will apply equally to the law governing testamentary capacity. It will also make the law more clearer for those who assess capacity as part of their roles – such a medical practitioners – in relation to a wide range of types of decisions”.
The Law Commission therefore recommended that the tests set out in the Mental Capacity Act 2005 should apply to all assessments of testamentary capacity.
The Law Commission however recognises that there is a long history of case law with regards to testamentary capacity over the last 200 years and that this case law will remain relevant to the operation of the MCA test when it is being used to assess someone’s capacity to make a will, and “in particular, it will continue to inform the information relevant to the specific decision of making a will.”
In this regard, the Law Commission recommends that the MCA Code of Practice which provides guidance to those assessing capacity under the MCA, should refer to and explain the elements of the Banks v Goodfellow test.
The Mental Capacity Act 2005 test presumes that a person has capacity unless it is shown that they do not. The Law Commission recommends that this presumption of capacity should apply in the context of making a will – as it presently does.
The Law Commission further recommends “that there should be a code of practice on testamentary capacity issued in the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a will or assessing capacity in their role as a professional or for payment should be required to have regard to it”.
Electronic Wills
The Law Commission notes that the formal requirements for a valid will remain nearly exactly the same as they were when the Wills Act 1837 was enacted.
The Law Commission recommends that provision should be made for electronic wills, on the basis that electronic wills must be secure. The Law Commission states:
“They must provide the same level of security against fraud and undue influence and provide the same level of certainty and evidence about the testator’s intentions as paper wills. Our review has led us to conclude that they can: that electronic wills can be made in a way that will provide strong evidence that the will was executed by the testator; cause the testator to think carefully about what they want to achieve with their will; direct the testator into complying with standard, clearly defined requirements; and provide sufficient protection for testator’s against fraud and undue influence when making their will.”
Further with respect to electronic wills, the Law Commission says that it should be possible for the requirement for witnesses – or a person signing on the testator’s behalf – to be in the testator’s presence to be met by remote presence by way or a visual transmission (for example by video call).
Draft Bill
The Law Commission has produced a draft Bill of an entirely new Wills Act, in order to provide “a single, modern Act that contains all the legislation governing wills in one place”.
The Law Commission concludes in its summary:
“Therefore, our draft Bill for a new Wills Act does a number of things. If enacted, it would amend the law to bring into effect our recommendations. Where we are not recommending that the law should be changed, the draft Bill converts existing provisions of the Wills Act 1837 into modern provisions and brings into one place some of the other provisions that are about wills, in other legislation, so that they can be found in one place. The draft Bill dispenses with provisions of the 1837 Act where we have concluded that they no longer serve any function.
The draft Bill has been written in a modern and accessible way, using updated and simplified language.”
These recommendations and the draft Bill will no doubt be closely considered by Australian state law reform commissions and their legislatures.
The Law Commission’s summary of its key recommendations is here.
