Duty to the Court

Question 1

Rule 23 - Overriding duty

Answer 1

Barrister has Overriding duty to the Court to act with independence in the interests of the administration of justice

Question 2

Rule 24 - Misleading or deceiving

Answer 2

Barrister must not deceive or knowingly or recklessly mislead the court

Question 3

Rule 25 - Correction of misleading statements

Answer 3

Barrister must take all necessary steps to correct any misleading statement made by the barrister to the court as soon as possible after the barrister becomes aware the statement was misleading

Question 4

Rule 26 - Incorrect concessions

Answer 4

In a CIVIL PROCEEDING, must alert opponent and if necessary inform the court if any express concession made by the opponent about evidence, case law or legislation that is contrary to the true position and that the barrister believes was made by mistake

Question 5

Rule 27 - Ex parte applications

Answer 5

In an ex-parte application seeking interlocutory relief, barrister must disclose to the Court all factual and legal matters which:
● (a) Are within the barrister’s knowledge;
● (b) Are not protected by LPP
● (c) The barrister has RG to believe would support an argument against the grant of relief or limiting its terms adversely to their client.

Question 6

Rule 28 - Privilege

Answer 6

If barrister has knowledge of matters above that are subject to LPP, must:
● (a) Seek instructions re: waiver of privilege so barrister can disclose in accordance with above section; and
● (b) If client does not agree, (i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so and (ii) must refuse to appear on the application.

Question 7

Rule 29 - Contrary authority

Answer 7

At appropriate time in hearing of the case if court not yet informed, (a) Must inform the court of binding case law or (b) where there is no binding authority, any authority decided by an Australian appellate court (c) And also any legislation, known to barrister and which the barrister has reasonable grounds to believe to be directly in point, against client’s case.

Question 8

Rule 30 - Exception to Rule 29

Answer 8

Don’t need to do this if opponent tells the court that case will be withdrawn or will consent to final judgment in favour of barrister’s client, unless the time at which it would have been appropriate to raise it has already arrived or passed

Question 9

Rule 31 - Subsequent awareness

Answer 9

If become aware of such a matter after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by
○ (a) Write a letter to the Court, copying the opponent, limited to relevant reference unless opponent has consented in advance to additional material being included; or
○ (b) Request court to re-list for further argument after first notifying opponent and consulting on convenient dates

Question 10

Rule 32 - exception - admissibility of evidence against Accused

Answer 10

And don’t need to do this (follow rule 29) if defence and it’s re: admissibility of evidence adduced by P and TJ rules on inadmissibility of the evidence w/o calling on defence

Question 11

Rule 33: Previous convictions

Answer 11

if know or suspect client has previous convictions and P is unaware, can’t ask a prosecution witness hoping for a negative answer.

Question 12

Rule 34: Effect of order

Answer 12

If court under apparent misapprehension about effect of order, barrister must inform the court.