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12.2 Fairness & Candour in the Adversary System
Impact of adversarial system on lawyers’ representation of clients
 ‘Excessive adversarialism’ – delaying and adversarial tactics in pre-trial discovery.
 Issue: balance between duties to client/court, esp. Duties of fairness and candour
 12.15 ‘To save that client by all means and expedients, and at all hazards and costs to other persons, and
among them, to himself, is his first and only duty ‘ (Lord Broughman, Giannarelli v Wraith)  the ‘fearless’
approach, which must be in the context of duty of the advocated to the court regarding fairness, honesty
and candour
 12.16 In balancing duty to court, barrister is free from allegiances and interest and the closer and continuing
association which the solicitor has with the client (Mason CJ 1993)
 12.17 Practitioner has duty to exercise independent discretion regarding which argument and which
evidence is best brought before court
o Extends to cases where lawyer proceeds with litigation that is doomed to fail and continued for
alterior purpose as opposed to pursuit of case that is merely hopeless (Lemoto v Able Tehnical)
Hopeless cases & Unreasonable delay and expense
BR s 100
100. A barrister may return a brief accepted under a conditional costs agreement if:
(d) the barrister has the firm view that the client has no reasonable prospects
of success or of achieving a result better than the offer.
LPA s 345J
S345J of the Legal Profession Act states that a solicitor or barrister must not provide legal services on a claim for damages or
defence to the claim unless that solicitor or barrister “reasonably believes on the basis of provable facts and a reasonably
arguable view of the law that the claim or the defence has reasonable prospects of success.
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Barrister cannot assert any matter of fact at any point in lit process, unless reasonable grounds and proper
basis for doing so (Ackland 2000)
Cannot abuse process by making allegations purely for strategic reasons to delay time (Callinan)
13.2 Unreasonable delay can constitute professional misconduct (Re Nelson)
Solicitor has a clear duty to avoid situations where overwork or other sources of stress prevent proper
processing of matters undertaken for clients (Re Nelson)
13.3 Single instance of delay would not ordinarly justify suspension/striking off (Mellifont v QLD Law
Society).
Party may be granted relief were conduct designed to induce party to incur extra expense in the belief that
an action would proceed to trial, not withstanding delay (WLD Trustee s v Drysdale Hendy & Co)
13.4 Unreasonable delay  unnecessary expense for other side, against public interest and bring law into
disrepute (Myers v Elman).
In determining whether unreasonable delay warrant case dismissal, consider (Tyler v Custom Credit Corp):
o how long ago events in statement occurred, what delay there was before commencement of
litigation
o how long ago litigation commenced/ or causes of action were added
o ptf’s prospect of success in action
o whether there has been disobedience of Court orders/directions
o whether litigation has been categorised by periods of delay
o whose fault the delay is – ptf/dft?
o Whether the impecuniosity of pft has been responsible for slow pace of lit
o How far litigation has progressed
Myers v Elman
Davy-Chiesman v Davy-Chiesman
S 208P LPA: s208 P Liability of barrister or solicitor for costs (reference material pg 136) where lawyers can
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be held responsible for delay and expenses in cases in which they are appearing. 208(P)(2)- The costs
assessor may in the determination (a) disallow the costs as between the barrister or solicitor and the
barrister’s or solicitor’s client, and (b) direct the barrister or solicitor to repay to the client costs which the
client has been ordered by a court or a tribunal to pay to any other party (c) direct the bar or solicitor to
indemnify any party other than the client against costs payable by the party indemnified, if it appears to the
costs assessor that costs have been incurred improperly or without reasonable cause, or have been wasted by
undue delay or by any other misconduct or default.
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Pt 3.2 LPA
o Amendments by CLA
o S 345 LPA
o S 347(1)
o S 348
Practice Note No 108 (The Chief Justice NSW)
Cost Orders against practitioners
1. Purpose of this practice note is to ensure compliance with directions and the rules of the Court
2. practitioners are reminded of their duty to the Court to ensure the efficient and expeditious conduct of proceedings.
3. practitioners should facilitate the just, quick and cheap disposal of proceedings.
Unsupported or Irrelevant Allegations
 Checking truthfulness of client’s allegation before arguing them in court
 Available sanctions where practitioner fails to comply
 Clyne v NSW Bar Association
Misleading the Court
 Lawyers cannot make false/misleading statement in courts or allow client to make statement in cour that
lawyer knows is false
 If lawyer finds out the client lied to court (BR 32):
32. A barrister whose client informs the barrister, during a hearing or after judgment or decision is reserved and
while it remains pending, that the client has lied to the court or has procured another person to lie to the court or
has falsified or procured another person to falsify in any way a document which has been tendered:
(a) must refuse to take any further part in the case unless the client authorizes the barrister to inform the court of
the lie or falsification;
(b) must promptly inform the court of the lie or falsification upon the client
authorising the barrister to do so; but
(c) must not otherwise inform the court of the lie or falsification.
Interference with witness and other parties
 Lawyers restricted from communicating with other parties and witnesses during trial (Model Rules)
 For a practitioner to persuade witness to not give evidence or change evidence may obstruct course of
justice, as relevant evidence might not be given (R v Miras)
 SR 18
 BR 54-55
 13.10C Misconduct need not fall within any legal definition of wrongdoing; enough that it amounts to grave
impropriety affecting their professional character Kennedy v Council of Incorporated Law Institute of NSW
(vomit – railway death –pressures witness to change evidence = misconduct)
Rudeness
 13.11 Rudeness and discourtesy in court can amount to contempt (Lewis v Ogden)
 13. 13 Discourtesy not limited to tone of correspondence. Members of procession who seek to win
momentary advantage of their clients without observing usual/proper courtesies invite correction by court
and disapprobation of their colleagues (Hug v R)
 13.14 Discourteous/rude behaviour may destroy confidence/mutual respect generally categorising legal
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procession
Duty of candour and frankness
 13.16 relates to full and frank disclosure so that the court can properly determine the issues between the
parties. Includes:
o Questions of evidence and witness testimonies
o Use of authorities, informing court on relevant law
o Not making inferences in an opening address to court that cannot be reasonably proven (Talyor v
Edwards)
Conduct of court proceedings and case management (CPA)
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be
managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the
respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so
regulated, as best to ensure the attainment of the objects referred to in subsection (1).
58 Court to follow dictates of justice (considerations)
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the
dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the
degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances
beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the
party in the course of the proceedings, whether under rules of court, the practice of the court or any direction
of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or
direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
Overriding purpose CPA section 56 (NSW): facilitate the just, quick and cheap resolution of the real issues in the
proceedings. S57- objects of case management ss58,59 (eliminate delay), 60 (proportionality of costs)
CIVIL PROCEDURE ACT 2005
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick
and cheap resolution of the real issues in the proceedings.
-justice for all not just between the 2 parties (broader view of justice)
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of
court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to
participate in the processes of the court and to comply with directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in
subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to
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costs.
59 Elimination of delay
(cf Western Australia Supreme Court Rules, Order 1, rule 4A)
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of
time between the commencement of the proceedings and their final determination beyond that reasonably required for the
interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the
preparation of the case for trial.
Proportionality of costs
60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues
between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subjectmatter in dispute.
Directions – CPA sections 61, 62 and 63. 61(1) the court may, by order, give such directions as it thinks fit (whether
or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the
proceedings. [Very broad discretion] – UCPR 2.1-2.3
Failure to Comply with Directions 61(3)(a) – (g). under (a) it may dismiss the proceedings whether generally in
relation to a particular cuase of action or in relation to the whole or part of a particular claim. Most draconian is
considered to be (c). Most common used order is (f) [cost order (may not recover total cost if using senior barrister
or extra representation)](potential claims for indemnity costs (ie what the person actually spent)?)
Failure to comply with CPA or UCPR – s63 (procedural irregularity) -63(3) The court may d either or both of the
following: a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document,
judgement or order in the proceedings, either wholly or in part b) it may exercise its powers to allow amendments
and to make orders dealing with the proceedings generally.
Costs
 Costs can be made at the discretion of the courts and occur at the conclusion of proceedings (s 98(3) CPA)
 Practitioners may be liable for unnecessary costs incurred due to failure or delay by the practitioner (s 99
CPA)
Legal Profession Regulation 2005
Section 177 Advice on and handling of documents
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(1) A legal practitioner must not given advice to a client to the effect that a document should be destroyed or should be
moved from the place at which it is kept or from the person who has possession or control of it, if the legal practitioner is
aware that: (a) it is likely that legal proceedings will be commenced in relation to which the document may be required,
and (b) following the advice will result in the document being unavailable or unusable for the purposes of those
proceedings.
(2) Legal practitioner cannot burn documents
Solicitor’s Rules 17-19, 22, 23 (Pg 16-19 reference materials)
17 – Preparation of affidavits
- 17.1 If a practitioner is
(17.1.1) aware that a client is withholding information required by an order or rule of a court, with the intention of misleading
the court or
(17.1.2) informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular
And the client will not make the relevant information available, or allow the practitioner to correct the false evidence; the
practitioner must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the court, give notice of
the practitioner’s withdrawal from the proceedings.
18 – Duty not to influence witnesses
- A practitioner must not, in relation to any matter or event which is the subject of adversarial proceedings before a Court, confer
with or interview:
(18.1) the opposing party in the proceedings including a person who may be represented or indemnified in the proceedings by an
insurance company
(18.2) opposing party is a corporation unless –
(18.3) the other person, if unrepresented, has been fully informed of the practitioner’s purpose in conducting the interview, has
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been advised to seek and has had the opportunity of obtaining independent legal advice
(18.4) practitioner acting for the other person has agreed to the interview on conditions which may include the conduct of the
interview in the presence of the practitioners for both parties
19 – Practitioner a material witness in client’s case
- A practitioner must not appear as an advocate, unless there are exceptional circumstances justifying the practitioner’s
continuing retainer by the practitioner’s client, the practitioner must not act, or continue to act, in a case in which it is known, or
becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues
before the court.
22 – Bail
- 22.1 - A practitioner must not promote, or be a party to, any arrangement whereby the bail provided by a surety is obtained by
using the money of the accused person, or by which the surety is given an indemnity by the accused person or a third party acting
on behalf of the accused person.
- 22.2 – A practitioner must not become the surety for the practitioner’s client’s bail
23 – Advocacy Rules (A. 15 to A.72) (please refer to reference materials (pg 19-28)  rely on these when solicitor plays role of
advocate in court
- Duty to a client: practitioner must seek to advance and protect the client’s interests to the best of practitioner’s skill and
diligence (A16)
- Independence – Avoidance of personal bias: practitioner must not act as the mere mouthpiece of the client and must exercise
the forensic judgments called for during the case independently (A18).
- Frankness in court: A practitioner must not knowingly make a misleading statement to a court on any matter (A21)
- Responsible use of court process and privilege: A practitioner must, when exercising the forensic judgments called for
throughout the case, take care to ensure that decisions by the practitioner or on the practitioner’s advice to invoke the coercive
powers of a court or to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the
material already available to the practitioner;(b) are appropriate for the robust advancement of the client’s case on its merits; (c)
are not made principally in order to harass or embarrass the person; (d) are not made principally in order to gain some collateral
advantage for the client or the practitioner or the instructing practitioner out of court. (A35)
- Duty to opponent: must not knowingly make a false statement to the opponent in relations to the case (A51)
- Integrity of hearings: A practitioner must not in the presence of any of the parties or practitioners deal with a court, or deal
with any practitioner appearing before the practitioner when the practitioner is a referee, arbitrator or mediator, on terms of
informal personal familiarity which may reasonably give the appearance that the practitioner has special favour with the court or
towards the practitioner (A61).
- Prosecutor’s duties: must fairly assist the court to arrive at the truth (A62) must not, by language or other conduct, seek to
inflame or bias the court against the accused. (A64)
Barristers’ Rules 17A, 21-31, 35-51 (Please refer to reference materials pg 55-62)
- 17A – A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of
the case which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client
already has such an understanding of those alternatives as to permit the client to make decisions about the client’s bests
interests in relation to the litigation. (Duty to client)
- 21 – A barrister must not knowingly make a misleading statement to a court on any matter (Frankness in court 21-31)
- Responsible use of court process and privilege Rules 35-40
- Efficient administration of justice Rules 41-42A where a barrister must seek to ensure that the bar does work in relation to
steps to be taken by or on behalf of the client, in sufficient time to enable compliance with orders, directions, rules or
practice notes of the court (41(a))
- Integrity of evidence: A barrister must not suggest or condone another person suggesting in any way to any prospective
witness (including a party of the client) the content of any particular evidence which the witness should give at any stage in
the proceedings (43)