At the Annual Bar Conference on the weekend of 2nd to 4th March 2012, there was considerable discussion about the new provisions of the 2011 Barristers’ Rule under the subheading, “Efficient administration of justice”, which came into force on 23 December 2011. John Bond SC presented a comprehensive paper discussing rules 56, 57 and 58.1 Hon. Justice Kenneth Martin, of the Supreme Court of Western Australia, touched on the same issues in his paper.2 They were again revisited in a panel discussion with the participation of Walter Sofranoff SG, QC, Michael Stewart SC, and Peter Davis SC.
Much of what was said on this subject — indeed, most of what was said — was both unequivocally correct and also highly salutary. The contrariness foreshadowed in the title of the present paper should not be construed as suggesting otherwise. There is a concern, however, that over-emphasis on what Bond SC has called “mandated efficiency” could distract attention from which might be termed the seminal duty of a barrister, as codified in rule 37 of the 2011 Barristers’ Rule:
37. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.
This is to be reconciled with — not supplanted by — rule 57, which provides:
57. 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 identified issues which are genuinely in dispute;
(b) have the case ready to be heard as soon as practicable;
(c) present the identified issues in dispute clearly and succinctly;
(d) limit evidence, including cross-examination, 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.
Confusing Good Advocacy with Ethical Duties
Much of the discussion concerning rule 57 at the Annual Bar Conference tended to conflate two considerations which must be rigorously distinguished: the approach which is in the client’s best interests, and the approach which is compelled by the barrister’s ethical obligations.
Happily, in practice, these will often coincide. In most cases, and for most clients, a course of action which promotes efficiency (as required by rule 57) will also be consistent with “promot[ing] and protect[ing] the client’s best interests” (as required by rule 37). To assume that the most efficient course of action will always be entirely consistent with the client’s interests, however, is to shut one’s eyes to reality.
Every competent advocate knows that — at least in the vast majority of cases — there are forensic advantages in confining one’s case to the best points, and abandoning any which have only limited prospects of success. Tony Fitzgerald QC (as he then was) was wont to observe, the good point will never raise up the bad point; the bad point will always drag down the good one.
But there are cases where there is no obvious “good point”: just an assortment of arguments, none of them particularly cogent, and none of them manifestly superior to the others, but all of which have some prospect of succeeding. There are also cases where the consequences for the client, in the event of an adverse outcome, warrant pursuing every argument which has any prospect of success. And, even if the potential consequences for the client are not so extreme, there will be clients who insist on pursuing every arguable ground.
At the same time, most experienced advocates (and doubtless many inexperienced ones, as well) have been in situations where the argument which they would have nominated as their “best point” has been rejected by the court, whilst an argument which they regarded as much weaker — even, in some instances, an argument which they had considered abandoning — has carried the day.
Similar observations could be made regarding other aspects of civil procedure which impact on the “efficient administration of justice”, such as applications to strike out pleadings, requests for particulars, applications for further and better disclosure, and applications for security for costs. If the test was whether the barrister could warrant that taking such a step will certainly make the difference between ultimate success and failure for the client, very few such steps could ever be taken. The substitution of a rather less rigorous test — whether, for instance, the barrister is satisfied that there is a real (rather than fanciful) chance of enhancing the client’s ultimate prospects of success — would dramatically change that outcome.
None of this is intended to discourage barristers from exercising their forensic judgments, in the client’s interests, to limit issues or to avoid taking unnecessary procedural steps. On the contrary, one aspect of the duty under rule 37 to “promote and protect … the client’s best interests” is to limit the costs which the client may incur, and the costs which the client may be liable to pay to the other side, if issues are not properly limited, or unnecessary procedural steps are taken.
But the question is whether a barrister, having concluded that a particular course of action is appropriate and justified to “promote and protect … the client’s best interests”, is then subject to a countervailing duty under rule 57 to “seek to ensure” that efficiency is promoted, even if this involves subjugating the client’s interests.
If the impression given at the recent Annual Bar Conference is any guide, received wisdom would appear to support an affirmative answer to that question. The purpose of this paper is to refute that view.
The Nature of the Duty under Rule 57
The professional duties and obligations of a barrister at common law, like Old Testament commandments, tended to be expressed in terms which were both negative and absolute: thou shalt not knowingly mislead a court; thou shalt not be a party to an abuse of the court’s process; though shalt not reveal clients’ confidences; and so forth.
It is therefore worth considering the language of rule 57. It is positive, rather than negative: “thou shalt” rather than “thou shalt not”. More importantly, the obligations are expressed in relative rather than absolute terms.
This is emphasised, not only by the opening words (“A barrister must seek to ensure …”), but also by the qualifications which are expressed in several of the subparagraphs, and probably implicit in all of them. Hence, subparas. (d) and (e) import a test of what is “reasonably necessary to advance and protect the client’s interests”. Subpara. (b) adopts the criterion of what is “practicable”. Subparas. (a) and (c) are characterized by adjectival weasel-words such as “genuinely”, “clearly” and “succinctly”.
Bond SC argues3 that:
Despite the language in which they are expressed, the rules do not set out mere aspirational goals. They set out binding norms for professional conduct.
This, however, is a false dichotomy. Doubtless rule 57 contains “binding norms for professional conduct”. But those norms, whilst “binding”, are expressed in relative rather than absolute terms; they are, to borrow the word suggested by Bond SC, essentially “aspirational”. The obligation is not to achieve a particular goal, but to “seek to ensure” that the goal is achieved, always subject to the stated qualifications.
Bond SC also questions:4
… whether the express articulation of rules in this way adds anything at all which is new … .
and observes that:5
It has long been known that the paramount duty of barristers is to the administration of justice and that that duty has carried with it certain obligations in relation to efficiency. See, for example, the judgment of Mason CJ in Giannarelli v. Wraith.6
Once again, however, there is a serious confusion of ideas when the reference to “certain obligations in relation to efficiency” is married with the expression “paramount duty … to the administration of justice”. This implies that achieving efficiency (as a duty “to the administration of justice”) takes precedence over duties which are owed merely to the client.
In truth, whilst the client is the immediate beneficiary of the duty expressed in rule 37, it is not a duty owed to the client alone. The administration of justice, at least as understood in the Anglosphere, is premised on the assumption that a party’s legal representatives will “promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the [legal representatives’] skill and diligence”. To neglect that obligation is as much a breach of the “paramount duty to the administration of justice” as any other breach of a barrister’s professional obligations.
In D’Orta-Ekenaike v. Victoria Legal Aid,7 the majority — Gleeson CJ, Gummow, Hayne and Heydon JJ — considered an argument based on “the potential competition between the duties which an advocate owes to the court and a duty of care to the client”.8 Their Honours concluded that this argument “… assumes, wrongly, that the duties might conflict. They do not; the duty to the court is paramount.”9 Though this passage explicitly juxtaposed the professional or ethical duty to the court with a duty of care to the client, this has been misunderstood as suggesting that a barrister’s professional or ethical duty to the client is somehow subordinated to the barrister’s professional or ethical duty to the court. That is wrong: the two must stand together, as aspects of a paramount duty to the administration of justice.
Of course, it does not follow that a barrister is entitled — let alone obliged — to pursue the client’s interests by improper or unlawful means. As McHugh J noted in the same case, “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”.10 This is reflected in the formulation of rule 37, which is qualified by the words “by all proper and lawful means”.
Examples of means which are either improper or unlawful were provided by McHugh J., as including:11
- 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.
The situation is obviously different, however, where a barrister is (on the one hand) attempting to comply with the rule 37 duty to “promote and protect fearlessly … the client’s best interests”, and (on the other hand) attempting, at the same time, to comply with the rule 57 duty to “seek to ensure” that proceedings are conducted efficiently. There is no question of employing means which are improper or unlawful. The only question is one of weighing — and, ultimately, choosing between — potentially competing objectives.
Given that the 2011 Barristers’ Rule express one of those objectives in absolute terms, and the other in terms which are relative (or “aspirational”), one might be forgiven for thinking that — applying ordinary precepts of statutory interpretation — the latter must yield to the former. This is not to deny that duties which are owed to the courts (or to “the administration of justice”) take priority over duties which are owed merely to a client. It is simply to recognise that, in fulfilling his or her duty to the courts (or to “the administration of justice”), a barrister’s obligation to “promote and protect fearlessly … the client’s best interests” — provided, of course, that the barrister is employing only “proper and lawful means” — is no less significant than the duty to “seek to ensure” that proceedings are conducted efficiently.
Particular Circumstances where Rule 57 may Apply
In theory, there are three types of situations where rule 57 may come into play, involving a choice between a more efficient and a less efficient course of action: where the more efficient course of action also coincides with the client’s best interests; where the more efficient course of action is contrary to the client’s best interests; and where the client’s best interests will not be affected by the choice between the more and the less efficient courses of action.
The first category is obviously unproblematic. So is the third. Indeed, it may be doubted that the third category can ever arise in practice: if the client’s best interests will not otherwise be affected, the more efficient course of action is likely to be cheaper, and therefore preferable in the client’s interests.
Hence, the only real question is whether a barrister’s duty under rule 57 ever compels him or her to adopt a course of action which is objectively more efficient, but harmful (or potentially so) to the client’s interests. There are various contexts in which this dilemma is likely to arise.
A. Tenuous legal arguments
In Steindl Nominees Pty Ltd v. Laghaifar,12 Davies JA (with the concurrence of Williams JA and Philippides J) observed:13
… 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.
Implicit in this statement is a recognition that there is nothing “improper” — let alone “unlawful” — in advancing “a case which is barely arguable (but arguable nevertheless) but most likely to fail”.
Of course, as already discussed, there may be powerful forensic reasons for abandoning an argument which has only slight prospects of success, especially if a better argument is available. But that is a judgment to be made in terms of the barrister’s obligation to “promote and protect fearlessly … the client’s best interests”; not by reference to a duty to “seek to ensure” that proceedings are conducted efficiently.
Nobody seems to be suggesting that rule 57 obliges a barrister to abandon any argument which has less than a 50% chance of success. It follows that any application of rule 57, in the context of abandoning weak arguments, requires some kind of value judgment; some kind of decision as to where the line is to be drawn. Is one obliged to abandon an argument which one regards as having a 5% chance of success? Or a 10% chance? Or a 20% chance?
And if such a value judgment is called for, is one entitled to take into account the consequences for the client in the event of an adverse outcome? Is it okay to run an argument which has only a 5% chance of success, if the clients are at risk of going to gaol, or being bankrupted, or suffering a judgment for many millions of dollars, or being turned out of their home? Does it make any difference if the potential gaol term is long or short, or how many millions of dollars are at stake? Or is it relevant that the case involves questions of some genuine public importance?
Moreover, if one is making such value judgments, would it not also be pertinent to consider the practical impact on the efficient administration of justice? Does it matter whether the contention which has only a 5% chance of success will take 20 minutes to argue? Or 2 hours? Or 2 days? Is the efficiency mandate to be applied differently in a busy applications list, where the judge has many matters to consider and may not be able to reach all of them, as compared with a situation where the last matter in the list has been reached by 11.00 am?
Whilst it is easy to make light of the various permutations of factors which could be taken into account in weighing the client’s interests against the interests of efficiency, there is a serious point at stake. The issue is whether counsel is obliged, contrary to his or her own assessment of the client’s best interests, and also contrary to the client’s express instructions, to forego an argument which may succeed, albeit an argument which is more likely to fail.
Bond SC contends that there is a duty to “conduct a triage of our arguments so that we can jettison the points on which we can’t win”.14 If the expression “points on which we can’t win” is intended to embrace only those which are unarguable, he is clearly correct; and, as the judgment of Davies JA in Steindl Nominees15 shows, such a duty existed prior to the adoption of rule 57. If, however, the expression “points on which we can’t win” is intended also to embrace the types of points which Davies JA described as “barely arguable (but arguable nevertheless) but most likely to fail”, then — with respect — the writer is unable to agree.
No principle of statutory interpretation could support a conclusion that rule 57 — expressed, as it is, in the aspirational language of “seek to ensure” — imposes “binding norms for professional conduct” which oblige counsel ever to surrender an argument which has even a faint prospect of getting up. All other considerations aside, the primary object of the 2011 Barristers’ Rule is to enhance the administration of justice according to law; such a reading of rule 57 would promote the very opposite outcome. As Dawson, Gaudron and McHugh JJ observed in a different though related context: 16
Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
B. Meritricious factual contentions
At the same time, it has to be acknowledged that very little court time is wasted merely by advancing an argument which is “barely arguable”. If it does engage the court’s attention, that, in itself, will be enough to vindicate the barrister’s forensic judgment that the point was worth running. And, if it doesn’t engage the court’s attention, it is likely to receive very short shrift. A far greater drain on court time is involved where the client insists on advancing a version of events, or other factual contention, which is unlikely to be accepted.
In such a case, and in accordance with the duty to “promote and protect fearlessly … the client’s best interests”, a barrister will be at pains to point out to the client the inherent improbabilities in the client’s narrative, the reasons why it is unlikely to be believed, and the probable consequences for the client in that event. But nobody, and especially no barrister, is entitled to deprive the client of his or her right to have his or her evidence considered — and either accepted or rejected — by the appropriate constitutional tribunal.
The barrister may well consider that the situation is utterly hopeless; and, no doubt, the barrister’s advice to the client will reflect the vehemence of the barrister’s opinion. As Callinan J observed in D’Orta-Ekenaike v. Victoria Legal Aid:17
… in his pleadings, the applicant asserts that “undue pressure” was imposed by [his lawyers]. The Court of Appeal was correct in holding that this could not give rise to a cause of action. In any event, the particulars indicate that the allegation is effectively of emphatic, perhaps even very emphatic, advice. As to that, it may simply be said that advice that is not clear, is advice that may not be worth having.
But, regardless of the advice which the barrister provides to his or her client, the decision remains the client’s. It does not matter that that the client has made any number of prior inconsistent statements; nor that there are audio-visual recordings plainly disproving every word of the client’s proposed evidence; nor that the entire College of Cardinals is willing to testify to the contrary. If the client insists that his or her version represents the truth, it is no part of the barrister’s role to allow his or her own opinion about the facts to take the place of the court’s.
C. Procedural steps & interlocutory applications
Most of the observations previously made with respect to “ tenuous legal arguments ” apply equally in this context.
Under rule 37, a barrister could not properly recommend a particular procedural step (such as requesting particulars or requiring disclosure of documents), or an interlocutory application (for example, to strike out a pleading, to compel the provision of particulars, for further and better disclosure, or for security for costs), without first concluding that it is in the client’s best interests to do so.
Accordingly, the question is whether rule 57 obliges the barrister to act otherwise than in accordance with what he or she considers to be the client’s best interests. For the reasons already canvassed, the answer is surely in the negative.
D. Requirements of formal proof
The obligation, under sub-rule 57(a), to “confine the case to identified issues which are genuinely in dispute”, is said by Bond SC to “[emphasize] the illegitimacy of any form of participation in … point-taking”.18 Presumably, the kind of “point-taking” which is said to be “illegitimate” is the kind which requires that the party who bears the onus of proof should discharge that onus in accordance with the rules of evidence. Elsewhere, Bond SC posits that, “If a document is not disputed and during the course of argument it becomes clear that it should be before the Court, why wouldn’t compliance with our duty require us not to object to it[’s] being tendered without formal proof ?”.19
The contrary view is that the rules of evidence — like every other branch of the law — is a resource of which the client is legitimately entitled to take advantage, subject (of course) to the costs consequences if formal proof is required in respect of a document or matter which is not genuinely in issue.
The present writer has, on at least three occasions within the last two years, engaged in shameless “point-taking” of the kind which Bond SC would characterize as “illegitimate”. In each instance, the “point-taking” was considered by the writer to be, not only consistent with, but indeed mandated by, his duty to “promote and protect fearlessly and by all proper and lawful means the client’s best interests”. And, in each case, justice was served — and, incidentally, the client’s interests were vindicated — by the course adopted.
One was a case before Philip McMurdo J in the Commercial List of the Supreme Court of Queensland. There was a grave suspicion, but no more than a suspicion, that the plaintiff had failed to make proper disclosure. At trial, the plaintiff sought to tender a deed of assignment, executed in Vanuatu under local law. As a result of insistence on formal proof, the plaintiff had to bring an accountant from Vanuatu to give oral testimony. This led to the belated disclosure of a large cache of highly relevant documents which had been secreted outside the jurisdiction, and contributed to defeating (on the substantive merits) a significant part of the plaintiff’s case.20
The second was a case before Rares J. in the Federal Court of Australia in Sydney. An objection which (frankly) lacked any substantive merit — an objection that an affidavit attested before a notary public had not been made in accordance with South Korean law — compelled the plaintiff to bring a witness from Seoul to give oral testimony.21 This witness, under cross-examination, admitted that the plaintiff had not, in fact, placed any reliance on the representations which formed the basis of a substantial part of the plaintiff’s claim.22
The third case was in the Brisbane Magistrates Court, involving a number of prosecutions for failure to comply with notices (purportedly) issued by the Brisbane City Council. Insistence on formal proof uncovered the fact that the BCC had no record that the officer who signed the notices had ever been delegated authority to do so, and the charges were dismissed accordingly.
In a case where it is clear that the other side is able to discharge a requirement for formal proof — where insistence on formal proof will achieve nothing more than a short adjournment, with or without an order for costs — and where there is no other good reason to take a technical point — a consideration of “the client’s best interests” with generally militate against taking the point. But no barrister should ever feel embarrassed in taking advantage of the rules of evidence, where he or she conscientiously concludes that doing so will, or may, enhance the client’s prospects of substantive success.
And — unless and until the rules of evidence are repealed and courts are empowered or required to operate on a “free for all” basis — rule 57 of the 2011 Barristers’ Rule cannot be understood as either authorizing or obliging barristers to abandon any benefits or advantages which the rules of evidence may offer the client.
E. “Delaying tactics”
There are suggestions that the new provisions of the 2011 Barristers’ Rule, comprising rules 56, 57 and 58, “are directed against lawyers’ delaying tactics”.23 That may be so, but it rather begs the question as to what is meant by a “delaying tactic”.
The fact is that, in most cases, the parties have unequal interests in achieving a quick trial. Most commonly, though not invariably, it is the plaintiff who will benefit from celerity; delay usually favours defendants, especially defendants who do not have substantial counterclaims.
Frequently, a plaintiff who desires a quick trial is willing to cut corners — to take shortcuts — with a view to achieving that object. Where the defendant’s pleading is lacking in particularity, they may forego the benefits of seeking, or bringing an application to compel, the provision of proper particulars. Where the defendant’s pleading contains irrelevant allegations or raises unsustainable contentions, they may resist the temptation to bring a strike-out application. Where the defendant’s disclosure is apparently deficient, they may decide that the benefits of compelling comprehensive disclosure are outweighed by the benefits of maintaining momentum.
But the fact that a plaintiff is willing to sacrifice the forensic advantages which may flow from rigorous compliance with the usual pre-trial steps, in order to achieve expedition, is no reason why a defendant — who does not share that objective — should feel compelled to do likewise. And, generally speaking, those steps are more important for a defendant than a plaintiff. As the moving party, the plaintiff should know what its case is, and what documents it needs to prove its case; for a defendant, the importance of knowing precisely the case which it has to meet, and of obtaining the documents necessary to meet that case, is often more critical. So a defendant may insist on punctilious fulfilment of each step in the traditional pre-trial regimen, not necessarily as a means of producing delay, but with no acute sense of disappointment if delay occurs.
Undoubtedly, there is a line — perhaps a fuzzy line — between utilising standard pre-trial steps as a legitimate means of enhancing the client’s prospects of ultimate success at trial, and employing the same standard pre-trial steps as a means of achieving some ulterior purpose: to delay proceedings; or even to run up costs, where one party is better placed than the other to conduct a war of attrition. However, the fact that a legitimate procedural step, undertaken for a legitimate purpose, may also be productive of collateral consequences which are advantageous for the client, is not a reason to shrink from advising a client to take a course of action which counsel otherwise considers appropriate.
Some would argue that the potential to cause delay should never be a consideration in advising a client to take a step which is otherwise justified. But that is not only unrealistic; it also reverses the natural and proper order in which counsel ought consider such questions. The first questions are, and should always be, whether the proposed step is one which, (a) has a reasonable prospect of advancing the client’s position in the litigation, and (b) is likely, if successful, to enhance the client’s prospects of a favourable ultimate outcome. If the answer to both questions is in the affirmative, counsel may then consider whether there are any relevant countervailing considerations. So, if the step is likely to be productive of considerable delay — and if such delay will be inimical to the client’s interests — that may be a good reason not to take a step which is otherwise justified. But if the client is indifferent to the risk of delay, or would potentially benefit from any delay, there is no reason not to take a step which is otherwise justified.
Of course, if rule 57 is “directed against lawyers’ delaying tactics” — meaning tactics of the kind which are inherently improper or unlawful — then this rule is otiose. It has always been the case that a barrister must not recommend an application which has no reasonable prospects of success, nor be party to an abuse of the court’s process. But such “lawyers’ delaying tactics”, being improper or unlawful, exist more in the imaginations of academic writers and journalists, than in real life.
Indeed, the writer is unable to bring to mind a single instance of an interlocutory application or a procedural step which was so clearly unmeritorious, or so obviously pointless or futile, as to be inexplicable except as a means of achieving delay. This is not to deny that the legal profession properly bears some of the blame for delays in the judicial process; but, most commonly, this is not the result of taking unnecessary steps, but of failing to take steps with appropriate alacrity, such as missing time-limits imposed under court rules or directions. And, even in these situations, the failure can usually be explained (though it is no excuse) as the product of disorganization, genuine oversight, or pure indolence, rather than a preconcerted manoeuvre to slow the pace of litigation.
Instances of improper or unlawful delaying tactics are, almost invariably, the work of lay litigants acting of their own volition. One notorious example is the litigant who sacks his own legal representatives the day before trial, in the hope (usually forlorn) of thereby securing an adjournment. Whatever the faults of the practising profession, we are no match for litigants in person when it comes to formulating misconceived claims, hopeless applications, pleadings which serve only to obfuscate rather than clarify the issues, and affidavits calculated to generate heat without light.
Conclusions
In the course of the panel discussion at the Annual Bar Conference mentioned at the beginning of this paper, the writer recalled an occasion, from his early years in practice, when Ian Callinan QC (as he then was) sought to agitate some 20 separate grounds of appeal before the Full Court.24 Campbell CJ and Connolly J — who were sitting with Thomas J — attempted to pressure Callinan into limiting his grounds of appeal.
After deflecting such attempts for about half an hour, Callinan eventually told the Full Court:
Your Honours: my client has a right to have every arguable ground of appeal agitated on his behalf; I have a duty to agitate every arguable ground of appeal on my client’s behalf; and — with respect — I intend to agitate every arguable ground of appeal on my client’s behalf.
The rest of his argument was heard in respectful silence.
Callinan lost. But at least his client had the comfort of knowing that the court was apprised of everything which could properly be said to advance his interests on appeal.
The writer hopes that a time will never come when counsel of competence and ability, acting under a misguided interpretation of the requirements in rules 56, 57 and 58 of the 2011 Barristers’ Rule, will feel unable to emulate the courage and fortitude shown by Callinan in pursuing his client’s interests. Without such undaunted examples from the leaders of the Bar, the hopes for our profession — and, indeed, for the litigating public at large — will be substantially dimmed.
Anthony J H Morris, LL.B. (Hons), Q.C.
Footnotes
- John Bond SC, Mandated efficiency: implications for interlocutory practice in the civil jurisdiction of some new aspects of the 2011 Barristers’ Rule, available from the Barweb website.
- Hon. Justice Kenneth Martin, Between the Devil and the Deep Blue Sea: Conflict between the duty to the client and duty to the court, available from the Barweb website.
- John Bond SC, Mandated efficiency: implications for interlocutory practice in the civil jurisdiction of some new aspects of the 2011 Barristers’ Rule (supra), para. 4.
- ibid., para. 9.
- ibid., loc. cit.
- (1988) 165 CLR 543 at 556.
- [2005] HCA 12; (2005) 223 CLR 1.
- ibid., para. [25].
- ibid., para. [26].
- ibid., para. [113].
- ibid., para. [111].
- [2003] QCA 157.
- ibid., para [24].
- John Bond SC, Mandated efficiency: implications for interlocutory practice in the civil jurisdiction of some new aspects of the 2011 Barristers’ Rule (supra), para. 26(a).
- [2003] QCA 157.
- Queensland v. J. L. Holdings Pty. Ltd., [1997] HCA 1; (1997) 189 CLR 146.
- [2005] HCA 12; (2005) 223 CLR 1, at para. [386].
- John Bond SC, Mandated efficiency: implications for interlocutory practice in the civil jurisdiction of some new aspects of the 2011 Barristers’ Rule (supra), para. 24(d)(i).
- ibid., para. 30(c)(ii).
- see Robson v. Robson, [2011] QSC 234; see also Hannover International Ltd v. Robson; Mine & Quarry Equipment International Ltd v. Robson, [2011] QSC 301.
- STX Pan Ocean Co Ltd v. Bowen Basin Coal Group Pty. Ltd., [2010] FCA 1002.
- STX Pan Ocean Co Ltd v. Bowen Basin Coal Group Pty. Ltd. (No 2), [2010] FCA 1240, especially at paras. 61 to 63.
- ibid., para. 20(b), citing Hon. Justice H.B. Fraser JA, The Ethics of the Advocate at paragraph 31, and Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Butterworths, 5th ed, 2010) at p.525.
- Willcox v. Sing, [1985] 2 Qd.R. 66.
