Tips For First Appearances

Being Candid With the Court

Our interactions with the Court are solemn in nature. In my experience, there is no more serious application that a legal representative can make than one seeking the removal of a Judge from hearing a matter on the grounds of actual or apprehended bias.

Our interactions with the Court are solemn in nature. In my experience, there is no more serious application that a legal representative can make than one seeking the removal of a Judge from hearing a matter on the grounds of actual or apprehended bias.

In my view, such an application ought to be approached with the uptmost professionalism and respect for the Court. Flippancy should be avoided. Winging it, or just plain making it up on the fly should be admonished as a recent Full Court decision in Kamano & Kamano [2015] FamCAFC 111 demonstrates.

In Kamano, Counsel for the Appellant had raised, as a ground of appeal, that a finding of alienation against the mother “reflected her Honour’s own researches suggesting the existence of a finding of alienation of the children by the mother”. Counsel could not identify the relevant parts of the transcript that supported any such finding and indeed, the Full Court was of the conclusion that “(t)he ground and the argument in support of it plainly suggest actual bias by pre-judgment. That is a serious assertion central to judicial integrity and the integrity of the judicial process.”

In admonishing counsel and making a recommendation for the Appeals Registrar to forward the reasons for judgment and the relevant part of the transcript of the proceedings to the Bar Association of Queensland, the Full Court said this;

  1. The justification for reserving the practice of law to qualified lawyers is that lawyers, as officers of the Court, owe their paramount duty to the administration of justice. That principle is reflected in many published rules of professional conduct including the New South Wales Barrister’s Rules; the Queensland Barrister’s Rules and the Barrister’s Conduct Rules of the Australian Bar Association. That paramount duty is beyond doubt. (See Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; White Industries (QLD) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169; Vozza v Tooth & Co Ltd [1963] NSWR 1675; Chatzipantelis v Grimwade Costings [1966] VicRp 33; [1966] VR 242.)

 

  1. That paramount duty incorporates:
    1. A duty not to mislead the Court and as part of that duty not to cast unjustifiable aspersions on any party or witness (or judge); and
    2. A duty to exercise an independent discretion or judgment to ensure that the conduct of the client’s case is in accordance with the dictates of the administration of justice; and
    3. A duty to ensure that where serious discreditable misconduct is alleged to ensure there exists a proper foundation to so do (Giannarelli v Wraith (supra) and White Industries (QLD) Pty Ltd v Flower & Hart (a Firm) (supra)).

 

 

  1. The duty also includes a duty to act honestly and with candour in all dealings with the Court. In Council of the Queensland Law Society Inc v Wright [2001] QCA 58 Justice McMurdo, President of the Queensland Court of Appeal, referred to the duty in these terms in dealing with disciplinary proceedings:

 

The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners’ submissions to the Court. This duty of candour and fairness is quintessential to the lawyer’s role as officer of the Court; the Court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but to reassure the public that such conduct on the part of lawyers will not be tolerated.

 

  1. Here, not only was there no foundation at all for the ground and the argument in support of it, but at least part of the argument advanced was premised on a misleading statement as to the content of the presentation referred to. Ms Merkin’s misleading (and thus false) assertions made about the integrity of a judge without the slightest foundation is an abdication of Counsel’s paramount duty to the administration of justice and is deserving of the strongest condemnation.

< Return

Contact Us | Make A Booking