Cases

Question 1

What is Legal Services Commissioner v Mullins
[2006] QLPT 12 about? (brief facts, rule, reason, and ethical course)

Answer 1

Facts: professional misconduct; fraudulent deception; reliance on report which intentionally deceived other party;

Bar/ethical rule: A barrister must not knowingly make a false statement (r 48), and must not withhold facts the nondisclosure of which would mislead the other side on material aspects, regarding the matter (LSC v Mullins).

Reason for rule: These rules ensures honesty in dealings between parties which in turn promotes confidence in processes.

Ethical course to peruse: A barrister and must take all steps correct any false statement as soon as they become aware the statement was false (r 49). Should advise client must disclose to other side. If client refuses to follow advice grounds to return brief (r 95). Failure to disclose so may result in professional misconduct (s420 LPA; LCS v Mullins).

Question 2

What is Ken Tugrul v Tarrants Financial Consultants Pty Ltd (In Liq) [No.2] [2013] NSWSC 1971? (brief facts, rule, reason, and ethical course)

Answer 2

Facts: Solicitor emailed judges chambers with an expert report that was not consented to by opponent. Solicitor noted in the email the other side did not consent. Judged deleted email and printed out and returned material to the party.

Bar/ethical rule: r 53. There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings without the knowledge and consent of the other party other than in specific exceptional cases: (1) trivial matters of practice and administration (2) ex parte matters (3) responding to court or direction from court (4) exceptional circumstances. N.B. such a communication with a disclosure of the other parties’ lack of knowledge or lack of consent does not cure any impropriety.

Reason for rule: The reason for the rule is to ensure the impartiality of the judge is not compromised (in fact or by appearance) by sending communication without other sides knowledge.

Ethical course to peruse: To avoid this situation, should have obtained consent otherwise not sent email to the court.

Question 3

Tri-star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136 (brief facts, rule, reason, and ethical course)

Answer 3

Facts: Application to inspect documents referred to in pleadings (r 222 UCPR). The documents were withheld due to concerns it would reveal commercially sensitive information. The parties were opponents to each other. Court accepted more than implied obligation was required because of confidential and commerciality sensitive nature of the information. Expressed undertaking required.

Bar/ethical rule: Where one party to litigation is compelled to disclose documents or information, the party receiving the disclosure is subject to an implied obligation not to use it for a purpose unrelated to the conduct of the proceeding in which it was obtained, unless it is received into evidence (Hearne v Street). The obligation so arising also binds third parties if they know of the origins of the material in legal proceedings. The court may impose a more onerous obligation than the implied obligation if persuaded there are exceptional circumstances.

Reason for rule: The implied obligation ensure those who were compelled to disclose
documents or information, did not suffer a harsher or more oppressive invasion of their privacy and confidentiality than was necessary for the purpose of securing that justice was done in the proceeding.

Question 4

Virgtel v Zabusky (No 2) [2009] 2 Qd R 293

Answer 4

Facts:

Bar/ethical rule:

Reason for rule:

Ethical course to peruse:

Question 5

Bale v mills

Answer 5

Fact: Court invited references to cases regarding Brown v Dunn issues. Parties send submissions.

The parties have no right to place material before the court following a hearing without leave.

This practice undermines and derogates the principle of open admin of justice.

It is not legitimatised by sending the material and then seeking leave. The proper course is to have the matter released so that an application can be made for filing of material.

The court may simply ignore what was sent.