Ethics Common Law

Question 1

Giannarelli v Wraith

Answer 1

Lawyer’s duty to the court is paramount. Lawyer should be independent and assist the court in the speedy administration of justice

Question 2

Cleveland Investment Group Limited v Evans

Answer 2

Test applied when exercising the discretion to restrain a lawyer from acting.

Test is whether a fair minded reasonably informed person would find it subversive to the administration of justice to allow the lawyer to continue acting.

Question 3

Finch v Heath Group Pty Ltd

Answer 3

Exercising power to remove lawyer from acting should done so only in extreme cases as it interferes with a client’s right to choose their own lawyer

Question 4

Owens v Owens

Answer 4

Discretion to remove lawyer for disrespectful behaviour

Question 5

Meek v Flemming

Answer 5

A court may set aside judgment where the court has been misled or evidence was omitted.

Also authority for not permitting a witness to give half truths

Question 6

Lougheed Enterprises Ltd v Armbruster

Answer 6

A lawyer is obliged to press such rational considerations as the evidence fairly gives rise to

Question 7

Jeffery v Associate National Insurance Co Ltd

Answer 7

Lawyer must not accept brief if they will likely be a witness in the case

Question 8

Freeman v Vicchiarelli

Answer 8

Lawyer must avoid representing a client where partner, family or friends are likely to be a witness.

Question 9

Scallan v Scallan

Answer 9

Conflict of Interest - Test is the balance between public interest that party should no be deprived of a lawyer of choice without good cause, and the cost, inconvenience or impracticability of the lawyer being restrained.

Question 10

Brown v Daniel

Answer 10

lawyer who becomes a witness may continue representing client if it is not possible to withdraw without jeopardising the clients case

Question 11

Barrott v Barrott

Answer 11

Independence - Counsel must be personally remote from subject matter of the dispute

Question 12

Re Gruzman

Answer 12

Lawyer must not mislead the court as to the law and must ensure that the law is applied correctly

Question 13

Rondel v Wosley

Answer 13

Lawyer must not withhold authorities that may tell against their client, but which the law or the standards of the profession require them to produce

Question 14

Re Davis

Answer 14

A lawyer must not mislead the court

Question 15

Vernon v Bosley (no 2)

Answer 15

Lawyer’s duty to correct any misapprehension

Question 16

Kyle v Legal Partitioners Complain Authority

Answer 16

If a witnesses statement is put to enquiry, the facts stated should where practicable be checked are true

Question 17

Thomas A Edison v Bullock

Answer 17

In ex parte applications counsel must bring forward all material facts which the other party would presumably brought forward in defence.

Question 18

Perpetual Trustee Co Ltd v Cowley

Answer 18

where client has committed perjury and refuses to inform the court, the lawyer must withdraw but not tell the court

Question 19

K(R) v K(S)

Answer 19

lawyer must not advise a client to disobey a court order

Question 20

R v Noble

Answer 20

Duty not to coach or encourage a witness to give evidence different from what the witness believes to be true or suggest answers

Question 21

Deacon v Australian Capital Territory

Answer 21

a lawyer must not prevent or discourage a witness from conferring with an opponent or being interviewed by another person. This does not prohibit simply telling a witness that they need not agree to confer or be interviewed

Question 22

R v Turner

Answer 22

Lawyer should endeavour to avoid being alone with the judge from the commencement of the hearing until the conclusion without consent of the other party

Also Lawyer must give advice about whether to accept a plea and should take written instructions.

Question 23

Clyne v New South Wales Bar Association

Answer 23

It is a barrister’s profession responsibility to not make allegations without sufficient basis or without reasonable grounds

Question 24

Steindl Nominees Pty Ltd v Laghaifar

Answer 24

it is improper for counsel to present, even on instructions, a case which he regards as bound to fail

Question 25

Saltoon v Lake

Answer 25

Allegations of serious misconduct or fraud should not be made lightly

Question 26

Alister v R

Answer 26

General duty to not do anything that would prejudice a fair trial

Question 27

R v DDR

Answer 27

Prosecutor must not seek to inflame or bias the court against the accused

Question 28

R v Brown

Answer 28

Duty of disclosure based on right of defendant to a fair trial

Question 29

Richardson v R

Answer 29

the duty of fairness impacts upon the prosecutors calling of witnesses

Question 30

R v Apostilides

Answer 30

a refusal to call the witness will be justified only by reference to the overriding interest of justice

Question 31

R v Casey

Answer 31

A prosecutor may make submissions as to sentence but no seek to persuade the court

Question 32

Meissner v The Queen

Answer 32

Person may plead guilty to the charge regardless of whether that person is in truth guilty

Question 33

Marriage of Harris

Answer 33

An ICL does not necessarily advance what the client wants but what is in the best interest of the children. The ICL may disclose information and communication from the child if the lawyer considers the disclosure to be in the child’s best interest, even if the disclosure is made against the child’s wishes.

Question 34

Watkins v De Varda

Answer 34

a lawyer who gives the impression that they are servicing a third party’s interest may owe a duty of care to that third party

Question 35

Ken Tugrul v Tarrants Financial Consultancy Services Pty Ltd

Answer 35

There should be no communication (written or oral) with a judges chambers in connection with any proceeding without prior knowledge and consent of all active parties to those proceedings.

There are four exceptions.
1. Trivial matters of practice, procedure and administration (eg. start time, location and robing)
2. ex parte matters
3. where communication responds to one from the judges chambers or is authorised by an existing order or direction; and
4. exception circumstances

Except for trivial matters consent should always be obtained and if no consent this should be address the reason for no consent.

Question 35

Bale v Mills

Answer 35

obligation on a barrister to treat a witness fairly - failure to put to the witness the case the party sought to make (Browne v Dunn)

Question 35

Kennedy v Council of the Incorporated Law Practice of New South Wales

Answer 35

a lawyer is precluded from suggesting to a prospective witness the content of the evidence the witness should give.

Question 36

Day v Perisher Blue Pt Ltd

Answer 36

Rule against conferencing with multiple witnesses

Question 37

Tri-Star Petroleum Company v Australia Pacific LNG Pty LTD

Answer 37

Implied undertaking not to use disclosure for a purpose unrelated to the conduct of the proceedings in which it was obtained unless it was received into evidence. (Hearne v Street).

In some extreme cases implied undertakings will not be enough and the court may make Fielder Gillespie Orders

Question 38

Virgtel Limited v Zabusky (no2)

Answer 38

Court declined to accept submission forwarded to the court by Virgtel after the hearing as no leave had been sought or granted