Ethics Flashcards
LPA Part 3.4 Div 8 (ss345-347)
Speculative personal injury claims, 50:50 rule,
Supreme Court PD 20/2012
Direct access briefing -
1. Do all the usual things required of a barrister and a solicitor
2. Refuse the brief unless satisfied that barrister will be able to properly prepare the case and take all appropriate action
3. Comply with r24B
4. Prepare document per r24B including a written acknowledgment by prospective client and file a copy in Court and deliver to Chief Executive of BAQ
Bale v Mills [2011] NSWCA 226
Principles - breach of duty of candour, breach of the rule in Browne v Dunn, burden of proof (civil: balance of probabilities)
Schipp advised Mills to settle damages claim for 175k incl costs. Allegedly advised video evidence ‘damning’, Centrelink preclusion 52 weeks (but actually 115 weeks) and unable to receive further WC benefits if unsuccessful in proceedings.
Trial judge found Schipp allowed correspondence to be left in a misleading state which concealed his error, and that was deliberate.
Appeal court found breach of rule in Browne v Dunn as no CX (opportunity to explain) error in Centrelink letter, may have simply overlooked it (i.e. could not be inferred that he intentionally and deliberately set out to mislead) and Briginshaw and s140 EA (NSW) required consideration of gravity of matters alleged.
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Principle - improper coaching of witnesses, take proofs of evidence from witnesses separately and encourage witnesses not to discuss their evidence with others, verdict/judgment set aside and new trial ordered
Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [No. 2] 2013 NSWSC 1971
Principle - communication between parties and judge/court staff, consent must be obtained by all parties as to form, but four exceptions
Three basic rules:
1. No communication (written or oral) with judge’s chambers without prior knowledge and consent of all active parties
2. Precise terms of any proposed communication with the judge’s chambers should be provided to the other parties for their consent
3. Other parties must be copied-in on the communication.
Four (and theoretically five) exceptions:
1. Opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister
2. Trivial matters of practice, procedure or administration (e.g. start time/location, robing)
3. Ex parte matters
4. Court has communicated with the barrister in such a way as to require the barrister to respond (e.g. barrister’s communication responds to one from the judge’s chambers or is authorised by an existing order or direction
5. Exceptional circumstances
Legal Services Commissioner v Mullins [2006] QLPT 12 (23/11/06)
Principle - disciplinary proceedings - whether barrister’s actions in relying on reports constituted professional misconduct
Barrister made schedule and submissions saying FEL was ‘based upon the Evidex reports’. This misled Suncorp. Specifically, Mullins did not disclaim the assumption but asked Suncorp to have regard to those reports. In doing so, he intentionally deceived Suncorp intending they would be influenced by the discredited assumption to compromise the claim, which happened.
At mediation, barristers cannot approach the exercise on the basis that they were entering an ‘honesty free zone’, particularly noting the Barristers Rules 51 and 52.
Suncorp commenced proceedings to recover the settlement sum, which settled on confidential terms. Publically reprimanded, ordered to pay penalty of $20,000 and ordered to pay costs.
Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136
Principle - whether further conditions are required over and above an implied undertaking not to disclose documents exchanged during litigation.
Harmon undertaking (implied undertaking) is a substantive legal obligation not to use documents or information obtained in litigation for other purposes.
In Hearne v Street, the HCA recognised the implied obligation was the mechanism by which the law protected parties and ensured privacy/confidentiality.
In this case, Tri-Star sought production of documents and APLNG sought orders imposing a special protocol to access/use documents produced. The documents contained important market intelligence and pricing information.
Bond J agreed to impose additional protections including: (i) parties signing an express written undertaking, and (ii) certain documents only being given the lawyers. However, it is noted that there is a high threshold before a court will be satisfied that great protection than the implied undertaking is required.
Virgtel v Zabusky (No 2) [2009] 2 Qd R 293
Principle - $1.5M in costs orders, decision by trial judge not to grant stay upheld on appeal.
Virgtel brought four interlocutory applications and failed in each, receiving costs orders against it. It then sought a stay of those orders until after the primary proceeding was heard. Daubney J refused to stay those orders at first instance.
Appeal dismissed. Daubney J would have been going behind the discretionary exercise of the judges who made the original costs orders. Had they intended that the costs orders be stayed, they would have so ordered. Regardless, given the ‘gargantuan’ costs and the potentially deliberate oppressive behaviour justified costs being paid now.
Duties to the Court
Five duties to the Court
1. Duty of candour - honest, don’t mislead court, correct errors, inform court of other important facts, don’t present inadmissible evidence, don’t take unfounded objections
2. Duty of fairness - only make allegations where there is a sufficient foundation, don’t abuse position of advocate in a way which unfairly affects others/court process (e.g. prosecutors must disclose all evidence)
3. Duty of cooperation - conduct proceedings efficiently/expeditiously
4. Duty to maintain dignity of the court - maintain public confidence, assist administration of justice, don’t be arrogant/unpunctual/inappropriate/discourteous
5. Special duty of prosecutors - duties of fairness and disclosure, to call all relevant credible evidence, disclose any statement which assists defence, not to advocate for a higher sentence
Duties to the Client
Four duties to the client:
1. Duty to inform, advise and act on instructions
2. Duty of confidentiality
3. Duty to continue to act
4. Duty of loyalty
Duties of representation
- Duty of competence and diligence
- Cab rank rule
Duty to opponent
Role as a warrior not assassin.
