DISPUTES & ETHICS NOTES

1. INTRODUCTION
Part 1: How should we resolve disputes?
Disputes are an inevitable part of social life. They have the potential to be harmful to the parties and to the
community.
Many disputes are resolved by the parties themselves. However, some parties are unable or unwilling to resolve
their dispute without recourse to an external dispute resolution system.
What should be the goal(s) of a decent dispute resolution system? What kinds of processes should it involve?
Topics
• What kinds of dispute are addressed in this course?
• How should such disputes be resolved?
o By settlement on any terms agreed by the parties? By adjudication according to law? Or in some
other way?
 What do we mean by the terms: ‘negotiation’, ‘mediation’ and ‘litigation’?

Chistopher Moore: when a disagreement becomes a dispute:

- Two (or more) parties are unable and/or unwilling to resolve their disagreement
- When one or both are not prepared to accept the status quo (in other words, they cannot agree to
disagree)
- When one or both are not prepared to accede to the demand or denial of demand by the other

Hone Kenneth Hayne, Dispute Resolution and the Rule of Law (2002)

Historical/institutional influences
- ROL = rule of men
- Aust legal system grew out of English common law but was also drew upon US as US influences the federal
system of govt
- 1st Interpretation of ROL differs on each individual and his/her relationship with others in society
 ROL is to identify external norms of behaviour – norms are external to individual but applied equally
and are fixed by an external process
- 2nd Interpretation of ROL is to describe how the law and the State are related to one another
 the legal and political ie. political power, sovereignty, nationhood
 Supremacy of parliament over the Crown
o Australian colonies to federate (hypnotic effect)
- Competing ideas re system of government
 reconciliation is necessary ie. there is continuous evolution of governmental and legal structures as well
as evolution of understanding about them
o importance of recognising that neither governmental structures nor theoretical analyses of
structures are static
 eg. ROL always led to believe parl supremacy entails executive must be controlled by parl but by
late 20th century, parliamentary democracies of the British revolve around the executive
controlled parl
- understanding of ROL and its connection with govt structure becomes apparent in two steps:
 1st what role do courts have in developing norms of behaviour in society?
o Common law: judge-made rules
o How judge-made rules can be modified or abolished by statutes?
o Constitutional limits to judge-made rules?
 2nd what role do courts have in deciding whether laws enacted by the legislature or conduct by the
executive is lawful?
 o Judicial Review power in relation to validity of legislation and/or executive power is essential part
of ROL
 Court (ie. HC of Aust) to consider whether a legislation enacted by the legislature is const valid
 Marchall CJ in Marbury: “duty of the judicial department, to say what the law is”
- Both steps question the relationship between legal and political systems
- Important to know how and where the two intersects and in conflict, which prevails

The role of courts in Aust

- Two institutional arrangements that Aust lawyers would regard as integral to ROL: SOP and Judicial
independence
 Adopting the Westminster makes the SOP blurry (between leg and exec) but at the federal level (drawn
from the US) there is a sharp line between judicial and other branches
 As the respective powers of federal and State govts are limited, it is the task of federal judiciary to
decide those limits
o In Aust, judicial power cannot be given to a federal court + federal judicial power cannot be given to
other body except a federal court
o But State organs of govt tend to not reflect this SOP (Boilermakers’ doctrine)
- Dicey: ROL is freedom from arbitrary power by govt and equality before the law and basic
liberties/rights/freedoms

ROL and Dispute resolution

- Only relevant if dispute concerns legally enforceable rights and duties
- Two illustrations
 Each party may choose whether to submit the dispute to external resolution rather than reach an
agreement with the opposite party
o Freedom to choose external dispute resolution may not be absolute because it comes at a cost
(where often only the very rich or very determined can seek resolution of dispute)
 There is an established and accessible body to resolve the dispute by application ie. known and
predictable laws
o Its consequences include the structure of the system and the relationship between dispute
resolution that occurs outside the court system and the courts themselves
 Structural consequences arise more in civil rather than criminal disputes
- Most important institutional consequence is the application of public power to the resolution of disputes
 Why should adjudicator who is applying public power in resolving dispute be free from influence by
other elements of structures by which society is governed?
 What would be wrong with the adjudicator taking account of what those who have charge of economic
or other policy say would further that policy in the interests of the society as a whole?
o Answer lies in the requirement that the law be predictable and capable of being ascertained before
parties act or undertake obligations one to another
- Basically, the law aims at providing the best and safest solution that is compatible with human fallibility –
the law is preferring justice to truth
- The ROL reflects on the society to which it applies

Dame Hazel Genn, The Hamlyn Lectures: Judging Civil Justice (2008)
- Importance of judicial determination in civil justice as compared with private settlement
- Ideas about importance of adjudication and role of judiciary will differ depending on the position of judge in
court hierarchy and whether judge is being called upon to adjudicate in disputes between citizens/family
members/businesses/govt + citizens
 Civil justice system
- Civil justice= by Sir Jack Jacob and Michael Zander include not only the substantive law affecting civil rights
and duties but the machinery provided by the state and the judiciary for resolution of civil justice dispute
- Administration of civil justice includes institutional architecture, the procedures and apparatus for
processing and adjudicating civil claims and disputes
 System that is crafted partly by the govt and partly by the judiciary
 Judiciary are responsible for practice statements, guidance and rule changes and in many common law
jurisdictions have had a strong influence in reviews and reforms of civil justice
- Civil justice system is partly about substantive rights but more importantly to enable civil suits  right of
action and the machinery to make good
 “system” refers to a group of interacting, interrelated or interdependent elements forming a complex
whole or a functionally related group of elements, and that disturbance is part of the system that
produce predictable and unpredictable consequences to the other parts
- Civil justice is not just about how it affects the parties to the case, but how it operates – the institutional
architecture/procedures in carrying out justice

Significant of procedure
- Civil justice system comprises the substantive law, civil procedure rules, courts and judiciary
 Procedure is the main target of civil justice reformers as a critical challenge that is yet to be solved is the
problems of cost, complexity and delay in civil justice
 Bentham: importance of procedure lies in the link between evidence and correct decision by the judges
 Thus, procedural rules reflect a sense of justice
o Procedure is ‘the means by which society expresses its underlying meaning’ as people perceive
fairness as result of being given the opportunity to be heard, to influence the decision-maker and
being treated with respect and courtesy
 Lawrence Solum: procedure is about participation (ie. opportunity to be heard) – substantive justice and
efficiency – a reasonable balance between cost and accuracy
 Zuckerman’s correct measure of procedure: a complex judgement relating to rectitude of decision, time
and cost
o “there is no perfect rectitude of decisions, justice cannot be dispensed instantly without some delay
and justice cannot be absolutely free of cost constraints. Each system has had to balance the
competing demands and strike a compromise.”
- When people refer to justice/fairness is not about the outcome of the case but the procedure in court

Civil justice as a public good

- Lord Brougham: “justice between man and man”
- The political will of the State that civil remedies be provided for civil rights and claims

Importance of adjudication
- Private value of civil justice is in the termination of disputes – whether by negotiation, solicitor-generated
settlements or facilitated settlement through ADR or judicial settlement or judicial determination
- Public function of civil justice is linked with the value of adjudication
 Public value of civil justice is in reinforcing values and practices

Threats to civil justice

- External threat: unstoppable burgeoning of criminal justice in an environment of resource constraints

2. FAIR TRIAL

How should we ensure that people receive a fair trial?

- = the right to have certain disputes resolved according to law through the mechanism of a fair trial, a right
that is a central element of our legal system.
- As we will see, whether it is lauded or lamented, the trial process has become a benchmark against which
other forms of dispute resolution are often measured: in some instances, the trial is seen as the
embodiment of valuable qualities that should be approximated; while in others, the trial is seen as the
repository of shortcomings that should be avoided
- Further, the idea of the fair trial informs both
 (i) conceptions of the lawyer’s proper role and also
 (ii) the rules and principles that govern legal practice.
 This means that we cannot properly understand the role or the regulation of the lawyer without
understanding the fair trial. So, in this seminar, we will consider what constitutes a fair trial.

Topics
- In your view, what things would be needed in order to ensure that trials are fair?
- In the Australian legal system, what are considered the core principles of a fair trial?
- Are any of those core principles in competition with one another?

Zuckerman 2018
[3.1]-[3.9] The origins and extent of the “fair trial” in the Australian legal system
- P83 Spigalman CJ: “the right to a fair trial is perhaps the best established example of a presumption that is
appropriately characterized as part of a common law bill of rights”
- ‘right to a fair trial’ is protected through a variety of means; statute, rules of court and common law
principle
- some principles arising from ‘right to a fair trial’ such as independent and impartial tribunal are also given
some protection by the Aust Constitution
 t/f, the right to fair trial can be implied from the Const
- drawing upon English common law, these rules and principles have constitutional status while in Aust they
are referred to as common law rights and the extent to which they are constitutionally protected is limited
- Aust not having a Bill of Rights, looks at the common law rights as the Const rights are very limited

Express provisions in Const concerning fair trial principles

- P84: Chap 3 of Const makes provision for federal judicature: vests judicial power in HC, other fed courts
created by Cwlth Parl, and in other courts (aka state courts) on which parl confers federal jurisdiction
 Also provisions on the original and appellate jurisdiction of HC
 And Cwlth Parl’s powers to make laws concerning federal jurisdiction
- Elements of a fair trial given express protection in Constitution:
 S80: criminal trials on indictment of federal offences shall be by jury, and identifies the venue of such
trials – aka trial by jury
o Magna Carta reference to ‘the lawful judgment of his peers’ as a precondition for loss of liberty to
entrench the right to jury trial in our pantheon of liberties
 Limitations of using jury: costly, time consuming, less efficient + less effective because jury are
composed of ordinary people who may lack legal expertise
 S72: judges of HC and other federal courts may be removed by GG only on the recommendation of both
houses of parl, and only for ‘proved misbehavior or incapacity’
o Also prescribe judicial remuneration which must not decrease during a judge’s term  important
for judicial independence
 ensuring SOP from other arms of govt – fundamental to the judiciary structure
 Jacobs J in R v Quinn: ‘... [W]e have inherited and were intended by our Const to live under a
system of law and government... rights [of persons] are determined by a judiciary independent.
The governance of a fair trial for the determination of criminal guilt is the classic example’
  This principle of institutional independence is often aligned with a principle ‘decision
independence’ [3.24] and various other fair trial principles associated with principles of ‘natural
justice’ or even rights of due process – many of these lack consistent support as constitutional
principles in Aust
 Text and structure of Chap III and the nature of judicial power
o The constitution actually says very little specifically about the civil justice system and fair trials,
partly because its attention focuses on a relatively narrow part of the court system – whereas much
of civil justice on the other hand is managed through state courts.
o Implies that Parl cannot make a law ‘in which the judicial power... is exclusively vested to exercise’
Chu Kheng Lim v Minister for Immigration (1992)
o Constitution is significant for laying out the Australian legal system:
 1st: its structure and (thereby) in its recognition of the doctrine of separation of powers,
whereby Chapter I outlines legislative power—the making, altering or repealing of laws; Chapter
II outlines executive power—the general and detailed carrying on of governmental functions;
Chapter III outlines judicial power
 2nd: significant in the power it gives the HCA to interpret fair trial principles from the
constitution, albeit only in respect of Chapter III courts. This approach creates as Zuckerman
[3.9-3.10] notes, an odd slant to the jurisprudence, so that fair trial principles tend to be treated
more as a matter of institutional design rather than framed as creating individual rights.
- Limitations of the express protections:
 Most of aspects of a fair trial ie. absence of actual or apprehended bias on the part of the judge, are
absence
 The tenure and remuneration provisions are expressed to apply only to federal courts, including the HC,
but not the others (state courts etc)
Implications drawn from text/structure of Const
- Gradually, HC has expanded the const protection as the HC has found certain principles are implied in the
text and structure of Const, specifically Chap 3
 P85: Recognition of separation of judicial power from legislative and executive functions (Boilermakers)
 HC identified 2 principles to underpin modern constitutional jurisprudence:
o Limb 1: Parl could not vest federal judicial power on a court unless it was either a court created in
accordance with Chap 3 or a state court
o Limb 2: Chap 3 courts, namely the HC or a federal court, could not be used for purposes were
neither the exercise of judicial power nor ‘auxiliary or incidental thereto’
- Eg of fair trial principles grounded in the rights of the individual: HC has recognized that it is a characteristic
feature of Aust courts that they be independent and impartial
 Or more commonly expressed as an institutional feature of the court, rather than a right of an individual
to have an independent decision-maker determine their case
- Implies that Parl cannot make a law which “requires or authorizes the courts in which the judicial power of
the Cwlth is exclusively vested to exercise judicial power in a manner which is inconsistent with the
essential character of a court or with the nature of judicial power”  the Incompatibility test (Wilson)
 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ)
- Character of a court  Nicholas v R (1998): “consistency with the essential character of a court”
 “necessitates that a court not be required or authorized to proceed in a manner that does not ensure
equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the
case made against him or her, the independent determination of the matter in controversy by
application of the law to facts determined in accordance with rules and procedures... tends to bring the
administration of justice into dispute”

[3.16]-[3.28]
Characteristic features of a court, and of the judicial process
- P89: HC has emphasized a conclusive definition on characteristic features of a court is impossible
- One aspect of SOP: legislature cannot usurp (seize) the function of the court – Nicholas v the Queen
 Eg. Parl could not enact a law which required the court to decide a case in a particular way
o Parl cannot ‘direct the courts as to the manner and outcome of the exercise of their jurisdiction’
 But, it is permissible for parl to create rules of evidence and procedure which regulate the conduct of
court proceedings, provided those rules do not disguise what is in reality an usurpation of power
- Judicial decisions are characteristically binding and conclusive – Griffith CJ in Huddart, Parker & Co Pty Ltd v
Moorehead
- Hayne and Crennan JJ in Forge v Aust Securities and Investments Commission:
 ‘Institutional characteristics of courts in Aust is their capacity to administer the common law system of
adversarial trial. Essential to that system is the conduct of trial by an independent and impartial
tribunal.’
- P90: Harris v Caladine: Judicial power is a power exercised when the ‘tribunal which has power... is called
upon to take action’ which (subject to limited exceptions) proceeds by way of open and public inquiry, which
involves the application of the rules of natural justice and which is directed to ascertaining ‘the law as it is
and the facts as they are, followed by an application of the law as determined to the facts as determined’
 Characteristic of a requirement that a court delegate its powers/functions only to persons and on terms
designed to ensure that the judicial process will be observed
- No support by majority of the HC for:
 Elements of case management were inherent in exercise of judicial power but has not received majority
support of the HC – Nicholas v R
 P91: Const may protect a principle of equality before the court – Leeth v Commonwealth, but never yet
received support by a majority of the HC and thus, its constitutional status is still unsettled

Common law protection of fair trial rights

- alternative to constitutional protections
- examples:
 reality and appearance of decisional independence and impartiality
 application of procedural fairness which connotes both an impartial tribunal and the right of parties to
be heard
 adhering to the principle of open justice
 providing reasoned decisions

Elements of a fair trial

1. conduct of trial by an independent and impartial tribunal
o independent of what/whom – not just the other arms of govt, but the people on trial (the parties
and their representatives)
o not only actual impartial but also must be apparently impartial
o avoid any appearance of bias, not just the actual bias
 usually judges will recuse themselves if they apprehend any bias
2. open and public inquiry [3.50-3.51]
o Note Zuckerman on exceptions to orality and publicity principles
3. Opportunity for parties to present evidence and to challenge evidence
o Why have parties be involved at all?
4. Application of law to facts

The right to an independent and impartial tribunal – general principle

- P92: court owes a duty of impartiality to litigants and public at large as this is fundamental to the adversarial
system of civil justice
 absence of any appearance of bias
 aim to uphold the ROL
- two separate heads of disqualification for bias
  judge doing actual bias
 reasonable apprehension of bias from judge
- principles may apply differently in administrative decision-making context due to different nature of process
and circumstances

[3.46]-[3.11]
The principle of publicity and the right to a public hearing
- two distinct aspects: publicity and transparency principle
- public implies public members have rights to attend court proceedings, subject to practical limitations of
space and good order, to inspect certain court documents and publish what has passed in open court
- restricts parties’ ability to exclude public from the court hearings by requesting private hearings
- Bentham wrote: publicity is the very soul of justice – supported in Russell v Russell (Gibbs J)
- Pros of transparency:
 Reduce ill-informed and malicious criticism of their actions, and offers protection to the judiciary itself
 Contributes to determination of truth by encouraging only relevant info to come forward
 Bring up moral, social and legal issues and promote public debate
 Enhance public confidence in administration of justice and promote respect
Problem of transparency
- Reduction in orality as there is increase use of written statements and form of affidavits which are read in
private before hearing begins
 Encourage enforcement of public right to inspect materials placed before the court, not only court order
which is deemed as public document
Exceptions to general principle
- This require strong and compelling reasons
 Merely for protecting privacy and avoiding embarrassment is insufficient
- Departure from open justice principle may involve the order of the court to offer the minimum necessary
protection of countervailing interests by ordering proceedings take place in closed court (in camera) or info
concerning proceedings not be published or proceedings conducted anonymously rather than using parties’
actual names
- Principal exceptions: destroy the attainment of justice in a particular case

Right to a fair hearing?

- Victorian Charter of Human Rights and Responsibilities: s24 Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge
or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public
hearing
(2) despite subsection (1), a court or tribunal may exclude members of media organisations or other persons
or the general public from all or part of a hearing if permitted to do so by a law other than this Charter Note
see Part 5 of the Open Courts Act 2013
(3) all judgements or decisions made by a court or tribunal in a criminal or civil proceeding must be made
public unless the best interests of a child otherwise requires or a law other than this Charter otherwise
permits.
- At Common Law there is no overarching right to a ‘fair hearing’ – this sets potential limits on State Parl to
legislate inconsistently with this right

Opportunity for parties to present evidence and to challenge evidence

The right to be heard – general principle
- Primary purpose, not the sole purpose, of this right is to give the affected person an opportunity to present
their side of the store and respond to the evidence/arguments advanced against them
- This right is critical because it (silently) explains why much of civil procedure operates in the way it does, ie.
through procedural rules regarding
  Entitlement to have timely notice of the case against you, and any pre-trial steps that the opponent
intends to take
 Disclosure of the legal and factual basis of any claim and defence
 Obligations to disclose evidence ahead of trial
- Zuckerman may refer to this as ‘right to effective participation’ which depends on knowledge  turn to the
role of lawyers
 This is embedded in the Solicitor’s Conduct Rules creating obligations to take necessary steps pre-trial
Exceptions – general requiremens
- 1st: situations where denial of an opportunity to participate is only temporary and it is followed shortly
afterwards by a hearing at which earlier ex parte decisions is reconsidered in presence of both parties
- 2nd: partial denial of access to evidence/info, where material is withheld from party but disclosed to the
party’s legal representatives or experts
- 3rd: total denial of opportunity of participation, in context of non-adversarial proceedings

Application of law to facts

The right to a reasoned decision
- An aspect of judicial process because adjudicating a dispute judicially entails application of established rules
to the facts of the case
- This duty is not limited to appealable decisions
- Three policies for this duty by Soulemezis v Dudley:
 Enables parties to see the extent of their arguments are understood and accepted as the basis of judge’s
decision
 Promotes judicial accountability
 General rules for future cases

Access and equality before the law?

- Leeth v Commonwealth
 Deane & Toohey JJ (dissenting) argued that the obligation to act judicially imposed a duty on the court
to provide equal justice – ie to treat the parties fairly as equals before the law and to refrain from
discrimination on irrelevant or irrational grounds. We shouldn’t read too much into this. It arguably
overlaps with narrower and more clearly established principles such as the rule against (judicial) bias,
and the right to be heard. The unsettled nature of the jurisprudence [3.21] means the scope of any such
principle of equality is radically underdetermined. This I would argue is partly because of the lack of an
embedded human rights framework in Australian law.
 Some sense of substance might be garnered from the move in a number of states (Vic, ACT, most
recently Qld) to enact Charters of HR, though these are to some extent symbolic, they do set standards
for Government, public servants, local councils, Victoria Police and other public authorities) to act
compatibly with human rights, and to consider human rights when developing policies, making laws,
delivering services and making decisions.
- Victorian Charter of Human Rights and Responsibilities Act 2006
 S8 Recognition and equality before the law
(1) Every person has the right to recognition as a person before the law
(2) Every person has the right to enjoy his or her human rights without discrimination
(3) Every person is equal before the law and is entitled to the equal protection of the law without
discrimination and has the right to equal and effective protection against discrimination

Access, openness and uncertainty: EOX17 v Commonwealth of Australia [2019] FCA 1118
- In this case the applicant requested that reasons for decision not be published because it would reveal
medical info she wished to keep confidential
 “the business of the Court is conducted in public. Section 17(1) of the Federal Court of Australia Act
1976 (Cth) (‘the Act’) directs that the business of the Court ‘shall be exercised in open court’. The
 business of the Court quintessentially includes the public release of its judgements. It is an important
feature of the rule of law that, so far as is possible, litigation is conducted in public and that the spectre
of secret trials is avoided. Justice must not only be done, it must be seen to be done. Consequently, if it
is not seen, it is not done.”

The centrality of the parties [3.72]

What do you think of the pivotal role given to the Parties?
- Heydon J, International Financial Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
 A court may not decide a case on a point not raised by one of the parties or by the court for the
consideration of the parties... The court is not entitled to take into account factual material not in
evidence without notice to the parties. The court is not entitled to take judicial notice of particular
matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity
to controvert or comment on the source in which the inquiry is made... If, in determining whether the
law should be developed in a particular direction, the court has recourse to learned works, it ought to
give the parties an opportunity to deal with all matters which the court regards as material. The same
is true where the court is concerned with matters of fact going to the constitutional validity of
legislation, the construction of statutes, and the construction of the Constitution. Juries and judges may
take into account their observations of the behaviour of witnesses in the well of the court which could
not have been made by counsel, but only if they reveal what they have seen to the parties. A court
which acts on its understanding of a document in a foreign language without informing the parties
commits a breach of the rules of natural justice.
- Party control is somewhat problematic in fair trial terms is “application of the law to facts determined in
accordance with rules and procedures which truly permit the facts to be ascertained” – Gaudron J in
Nicholas v R (1998) 193 CLR 173, at 208-9
 the gathering of evidence and finding of facts is a large and critical part of the civil process – governed
by both procedural and evidential rules – notwithstanding an overarching belief that the system should
be inclusory of relevant evidence, some rules operate on an exclusionary basis where disclosure
would breach certain overriding obligations (eg. Client Legal Privilege – open to tactical abuse) or there
are substantial doubts about the reliability of the evidence (more an issue in crim trials – eg.
confessions)
 2 weaknesses to be aware of therefore (i) because of the primary role of the parties in gathering and
presenting evidence the trial is not really a neutral search for truth. It is a somewhat adversarial
presentation of different versions of reality. (ii) Evidential constraints and exclusions (sometimes
tactical) may also mean that the factual basis of a case may be more a matter of proof than truth.
- From party control to Controlling the Parties
 Civil Procedure Act 2010  Overarching Obligations for when the proceeding commences
o S7(1): The overarching purpose of this Act and the rules of court in relation to civil proceedings is to
facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute
o SS 16-26: overarching obligations
o Applicability of OO
 S10: apply to broad range of participants
(a) any person who is a party
(b) any legal practitioner or other representative acting for or on behalf of a party
(c) any law practice acting for or on behalf of a party
(d) any person who provides financial assistance or other assistance to any party in so far as that
person exercises any direct control, indirect control or any influence over the conduct of the civil
proceeding or of a party in respect of that civil proceeding
o OO relationships with other duty
 S13: overarching obligations and legal practitioners – in sum overarching obligations prevail
over other duties (eg to the client) to the extent of any inconsistency
  legal practitioner not required to comply with client’s instruction or wish which is
inconsistent with OO
 s14: Legal practitioner must not by his conduct cause the client to contravene OO
 s15: OO does not override duty to the court

Rules governing lawyers: Adversarial approach qualified by goal of fair trial

- Solicitors’ Conduct Rules
 19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been
informed of that matter, inform the court of:
o 19.6.1 any binding authority
o 19.6.2 where there is no binding authority, any authority decided by an Australian appellate court;
and
o 19.6.3 any applicable legislation,
o Known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in
point, against the client’s case
 24 Integrity of evidence – influencing evidence
o 24.1 A solicitor must not
o 24.1.1 advice or suggest to a witness that false or misleading evidence should be given nor condone
another person doing so, or
o 24.1.2 coach a witness by advising what answers the witness should give to questions which might
be asked
The right of access to evidence
- Important to adversary system
 Litigants have extensive rights to seek court assistance to compel production of evidence relevant to the
case
- Impression sometimes show that adversarial process is not concerned with completeness of evidence but
this is misleading as there is a variety of devices to ensure access to evidence
 Compulsory testimonial obligations
 Obligation to testify truthfully
 Witness immunity in respect of statements made in court
 Exceptions
o S126K of Commonwealth Evidence Act (1995): Journalist privilege relating to identity of informant
 (1) journalist to keep their promise to the informant
- There is very limited protection
 Serves to protect only the identity of source but not the info revealed by that source

The right of access to justice – general principle

- This right is found in a variety of principles
 Where it is presumed that legislation purports to restrict access to courts
 Court’s approach to vexatious litigants
 Context of applications for security for costs

Seminar Notes
- ROL centric is a fair trial
- Idea of a fair trial also underpins the ethics element, not just the dispute resolution
 The role of the lawyer as an officer of the court
o Implies responsibility to the court – their ethics, their duties (to their clients)
o Primary duty is to the administration of justice
- These principles of ROL + fair trial set us up to the barriers of justice, case management and non-court
dispute resolution (aka Alternative Dispute Resolution ADR)
 We will learn this throughout the sem
Seminar Scenarios

Lyn’s Proposed Legal System

- Legal services should be distributed on the basis of demonstrable need, via a publicly funded body and
general revenue – potential for system being entirely free to users or subsidized
 Prioritization could be governed by relative need ie. urgency, gravity, etc.
- Lawyers employed by independent authority and salaries based on experience and ability
- Citizens seeking legal assistance need to contact state agency

Strengths Weaknesses
- Acknowledge ordinary people’s lack of - Inequitable
understanding legal system – equitable - No guarantee of sufficient resources
- Client’s right/privilege to choose - No guarantee of just outcome from ADR ie.
representation arbitration
- Affects balance between justice as private or
public good
- State burdened with other costs
- Challenge with ensuring high qualified expertise
- Issue with resource allocation
- Issues with institutional independence – need
more transparency to avoid corruption

Milo’s Legal System

- More business-focused kind of legal system  legal services offered for-profit
- Law businesses should be allowed to charge whatever they like, provided they are transparent with
customers about their fees
- Customers able to freely choose preferred lawyers
- Competitive market influence lawyers to maximize value to clients
- Legal services distributed on basis of ability and willingness to pay
- Some firms may undertake pro bono service – but this is limited
- Courts might encourage parties to engage in ADR and out-of-court settlement in recognition of costs with
trials

Strengths Weaknesses
- Customers’ right to choose representation - Inequitable
- No guarantee of sufficient resources
- No guarantee of just outcome from ADR ie.
arbitration
- Affects balance for justice between private v public
good
- State burdened with other costs

3. ACCESS TO JUSTICE
- Access to justice = Generally, about exercising our rights – to enable a mechanism to resolving conflicts
between rights
 There are not necessarily express rights
o Magna carta
o Bremer Vulkan
 Court system provides the mechanism
 o Procedural rules
o Equal access
 as a principle
 as a practice – can be problematic
 legal representations
 ‘equality of arms’ (term used by Zuckerman)
 equal resources
- two reforms to the Old System
 procedural reforms (transformation of the court system)
 uniform system across colonies – a means to harmonization
o despite these reforms, ‘the system becomes the victim of its own success’ – [this is what the
seminar is focusing on]
 eg. costs and time delays in adjudication

Policy reform
- s7 of CPA 2010
 to address and strike a balance between just, efficient, timely and cost-effective
- s9 of CPA 2010
 brings up the idea of proportionate justice – the overarching purpose creates overarching obligations
 as a court user, there is an inevitable responsibility ie. to meet with court’s deadlines
 when there are obligations, there are also sanctions eg. court’s broad powers to holding a party in
contempt which may involve imprisonment sanction, or enable a court to take a step or not take a step
in litigation

Part 1: How should legal services be allocated? - to further the agenda of ‘fair trial’ in practice
Last class, we explored the concept of the fair trial and the central role it plays in the administration of justice. In
principle, everyone should be able to access the justice promised by the institution of the fair trial. But what if,
in practice, relatively few were able to fully benefit from access to the court system?
It is notorious that our legal system is expensive, complex and slow. Indeed, it has been widely recognised that,
as a result of those factors, there is a crisis in access to justice.
Other than cost, what are some of the major barriers inhibiting access to justice?

Topics
- What are the major barriers inhibiting access to justice?
- How do those barriers benefit and burden different interests?
- How should society overcome the barriers?
- Is there be a right to legal representation? Should there be?

Zuckerman on Australian Civil Procedure [3.128]–[3.137]

Equality before the law?

No requirement of equality of arms
- Aust civil procedural rules do not require the court in ensuring there is equality of arms between the parties
to litigation
 Eg. the application for a protective costs order – a prospective order which caps (limits) the costs for
which a party will be liable in the event that it is unsuccessful
o Muhammad Khalid v Secretary, Department of Transport: he (the appellant) requested to
discontinue his appeal if the protective costs order were not made  thus, this order was necessary
to achieve ‘equality of arms’
 Overarching purpose of the Civil Procedure Act (CPA)
 The term ‘equality of arms’ does not appear in CPA nor in the Rules
  Court of Appeal in Muhammand Khalid did not accept the order with reference to s7 of Civil
Procedure Act in which there was absence of clear words to incorporate such a principle of
‘equality of arms’
o Similarly, in Bare v Small
 Provisions in Victoria are not concerned with ensuring parties are on equal footing

Justification for departure from equality

- Justification are often made on purely practical grounds:
 the burden of proof of ‘balance of probabilities’ inevitably exposes plaintiffs to a higher risk of error as
the BOP test represents minimal disturbance of equality needed for meeting the practical necessity of
having a rule of avoiding a deadlock
 To avoid a greater harm eg. where a litigant requires urgent court action to protect its rights – it is
justified to temporarily deny its opponent the right to participate in the process so that the court may
take immediate measures to safeguard its rights until hearing in presence of both parties can be held
 Inequality from some personal attributes of the parties, eg. a litigant who is less well informed or well-
resourced is likely to fare worse than one who is better-informed
o Although the law cannot iron out all possible inequality but some that the law does try to prevent
injustice include special provision for litigants who are under a legal incapacity
 Potential for gross disparity in financial resources between the parties to unfairly disadvantage the
party who is less well-resourced

Legal representation
- There is no common law right in Aust to public funding for legal representation
 In criminal proceedings, Dietrich shows that the court has the power to order a stay if any trial would be
unfair, especially in cases ‘in which an accused is charged with a serious offence’
 But there is no such right/power in civil proceedings

Self-represented litigants
- Litigants have a ‘fundamental’ right to appear in person but there are exceptions to this:
 Persons under legal incapacity must have a litigation guardian to conduct proceedings on their behalf to
guard against the risk that they cannot adequately protect their interests
 Some litigants have no choice but to represent themselves, owing to the cost of legal representation
and the limited availability of public funding for legal aid
 Where litigants are left to face court proceedings without any assistance, there is a risk meritorious
claims and defences could founder for lack of understanding and expertise on the part of lay litigants
o However, usually the court is obliged to ensure that any trial is fair – a judge has a duty to take the
‘appropriate steps’ to ensure a fair trial will depend on the circumstances of the case
o But the main element of fairness is for the judge to remain impartial when hearing matters
between the competing parties

Part 2: The role of civil procedure in improving access to justice

In this part of the seminar, we will look at how our system regulates access to justice and how it has responded
to the challenge of improving access to justice, including through measures in the Civil Procedure Act 2010 (Vic).

Topics
- What reforms have been implemented to improve access to justice?
 an introduction to the Civil Procedure Act
o overarching purpose
 o overarching obligations
 what else should be done?

Zuckerman on Australian Civil Procedure (Chap 1: on reforms to improve access to justice) (TB)

Introduction
The Old System of Civil Justice
- Aust civil procedure was influenced from English roots (England and Wales)
- However, there has been attention drawn to the ‘excesses of and the lack of control over the system of civil
litigation; the inadequate attention which the system gives to the control of costs and delay and to the need
to ensure equality between the parties; the complexity of the present system; and the absence of any
satisfactory judicial responsibility for the effective use of resources within the civil system’
 The Aust Old System was characterized by excessive delay, cost and complexity in proceedings, and
these barriers prevented ordinary people from accessing the civil justice system
 1900 Aust became critical of delay and costs associated with the Old System – gradual increasing
demand for civil justice system by litigants was followed by an amplification of the problems with the
Old System
o Sir Anthony Mason (former CJ of HC) described Old System is an ‘erosion of faith’ due to its
‘rigidities and complexity, the length of time it takes and the expense (both to govt and the parties)
has long been the subject of critical notice’
o However, some say the individual autonomy in Aust civil procedure could be afforded

Procedural reforms (transformation of the court system)

- Needed to address excesses and inefficiencies of the Old System  1996’s Woolf Reports on Access to
Justice in the UK were published in which Lord Woolf MR recommended the adoption of an overriding
objective which embodied a 3D concept of justice:
o P3: Judgements that are correct in fact and in law (justice on merits),
o by means of proportionate use of resources (proportionality in the use of resources) and
o within a reasonable time (timely adjudication)
 Control of litigation was transferred from the parties to the court, such that case management
procedures were to be adopted that would be discharged consistently with the overriding objective
- Aust Govt’s 2000 report from the Aust Law Reform Commission (ALRC) found equitable justice requires the
legal process requires the legal process to be just, proportionate and timely and these findings were
consistent with Lord Woolf MR’s recommendations
 Many Aust jurisdictions implement versions of the overriding objective into their procedural statutes
and court rules, and an underlying philosophy of proportionality in case management decision-making
 In 2014, Aust Productivity Commission identified the objective of Aust’s justice system includes the
provision of least cost avenues for dispute resolution, facilitation of the quick resolution of disputes at
the earliest opportunity, and the enabling of proportionate legal services to solve problems

Defects of the Old System

- P4: The new regime represents an attempt to remedy the defects of the Old System
 One of the worst features of Old System was the way in which it ignored resource and time constraints
and single-mindedly pursued justice on the merits regardless of cost and delay
o The consequences of this one-dimensional approach to civil justice were most prominent in the
approach to party non-compliance with rules and court orders
 how to deal with parties who fail to comply with process rules or with court orders
o sometimes this can be addressed through forgiveness and the defaulting litigant be allowed to
proceed with their case, so that the court may decide the dispute on substantive merits
o or the court can hold the defaulting party has forfeited their right to use the particular process,
which may result in striking out the defaulting party’s claim/defence
 o or the defaulting party may proceed by paying a cost (financial)
 this approach has consequences on the costs, duration and administration of justice as a whole
 p5: delay was aggravated by two things:
o litigation that involves a multiplicity of proceedings and court appearances and there were very few
judges
o jurisdictional problems due to repeated journeys to court which increases congestion in courts
- which is why Judicature Acts were substantially reproduced in most Aust colonies to address such defects
- (1) ‘justice on the merits’
 Cost increase
o We can aim to address this through making use of advanced technology in legal system eg. e-filing,
e-discovery
o Cost disclosures but this does not necessarily resolve the issue with cost increase
o ADR in the present system has been a means to address this issue
o Policy reform – look into the objectives/purposes of the civil system
 Eg. VLRC – Civil Justice Review 2008
 Civil Procedure Act 2010 – important
 Supreme Court Act 1986 (Vic)
 Supreme Court Rules 2015 (delegated legislation) – important but remember it’s not a statute
 Delay in case assessment/management due to lack of procedural constraints
 Adversarialism (two ways of adversarialism):
o Adversarial ideology (or attitude)  looks into the ethics of the legal system as adversarial provides
a justification for deteriorating ethics
 Adversarialism encourage lawyers to tactical (ab)use of rules
 Aggressive taking of points – aggressive style in court making lawyers lose sight of what is
particularly relevant
o Adversarial process in litigation
o Which is why the idea of ‘equality of arms’ is important to address this concern
 Complexity
 Uncertainty

Lack of court control and adversarial attitudes

- P6: courts had little case management power to instruct the parties on how to conduct proceedings such as
by giving directions on their own volition, and lack of facilities for monitoring litigation progress
 ‘no clear judicial responsibility for managing individual cases or for the overall administration of the civil
courts’
 Court has no active role, only ‘reactive’ role – court’s function was limited to dealing with applications
that parties made at a time of their choice and on matters of their choosing issues to dispute/witnesses
to be called/manner to present their case etc.
- P7: Interlocutory applications aka pre-trial applications to court on matters of procedure
 Common applications concerned with complaints about non-compliance by the opponent or the
requests for leave to remedy irregularities

Harmful effects on access to justice

- P8: willingness of the courts to forgive procedural defaults encouraged parties and their lawyers to be less
than scrupulous about compliance with time limits and other obligations
 litigants exploit this for absorbing more time and resources than adjudicating for substantive issues
which led to a subversion of litigation system and obstructing access to justice
- court pay little attention to the effect of inefficiency and non-compliance with general standards of
litigation system
 eg. the courts may allow later performance of process requirements
  the courts lacked means to consider the implications of their approach to enforce procedural rules and
orders in ensuring access to justice on the system
- excessive adversarial culture undermines procedural reforms even though reforms aim to promote
efficiency
 litigants were free to complicate and protract the litigation process and courts had become powerless
to intervene
- not all cases going to trial involved extensive satellite litigation. Parties considering litigation have to always
be prepared to spend large and unpredictable amounts of money and time
 increasingly, access to courts became limited to litigants with deep pockets

Australian Productivity Commission Report in 2014

- p15: Productive Commission in its Inquiry Report on Access to Justice Arrangements identified its main
objective was to improve the wellbeing of Australians by ‘providing access to least cost avenues for dispute
resolution...’
 Each state/territory’s jurisdiction in Aust has its own unique civil procedure rules
 Each jurisdiction has embraced its own version of the overriding objective
o Despite this, all of them agree on three imperatives: arriving at judgements that are correct in fact
and in law, by means of proportionate use of resources, and within a reasonable time
 In contract to Old System
o Thus, overriding objective establishes a procedural discipline to enable a three-dimensional concept
of procedural justice

Overriding Objective in Aust

- P16: Different jurisdictions have different approach to give effect to overriding objective, some uses
statutes while others use rules of court

Victoria
- P20: Vic has a dual regime where statute is supplemented by the rules of court to implement overriding
objective
 P21: Uniform Civil Procedure Act 2010 (Vic): to facilitate the just, efficient, timely and cost-effective
resolution of the real issues in dispute  especially S9 of the Act
 Supreme Court (General Civil Procedure) Rules 2015 (Vic)  especially Rule 1.14 about efficiency with
time and costs, but Rule 1.15 allow the court may give any direction of any term/condition it thinks fit

Understanding the overriding objective

The 3D concept of justice
- P21: General principles that take precedence over the rules for the courts and litigants are ‘guided to the
just resolution of the case’
 P22: Individual rules offer detailed directions for steps to be taken in litigation, but the effectiveness of
it depends on a proper enforcement of their obligations and behaviour of parties when conducting
litigation as each has influence on time and cost of civil proceedings
- 3 points of reference for overriding objective by the court and parties:
 justice on merits, proportionality in the use of resources and timely adjudication
- ensuring parties on equal footing allow for practical efficiency and procedural fairness
- right to timely adjudication is found in Magna Carta
- overriding objective does not invest court with specific powers, but establishes a framework for procedures
in decision-making

Imperative of ascertaining the truth

- this is not expressly one of the aims of adjudication
(2) Proportionality of resources
- as overriding objective is firmly entrenched in Aust civil procedure, justice on merits is no longer the lone
goal that court must strive to achieve
- notion of proportionality requires procedure adopted for resolving a dispute is proportionate to the value,
importance and complexity of the issues in dispute
 parliament is not bound to give courts open-ended budget, all that litigants are entitled to expect is
reasonable allocation of resources
- proportionality is expected in regards to relationship between parties through the use of procedural
devices such as disclosure or expert witnesses, demands a response from the other party and thereby
imposes a burden on them
 an unreasonable use of procedural device is when there is an unjust burden
 court must ensure both parties have equal footing
- articulating resource allocation of court time to every case
 some strategies may include equal time given to every case but this has raised issues of time wasted on
simple/straightforward disputes while limited time for complex cases
o weakness of such strategies lies in their inflexibility, which tends to result in a mismatch between
the needs of particular disputes and the resources allocated to them
- s37M of Federal Court of Australia Act 1976 (Cth): requirement that disputes be resolved at a cost that is
proportionate to the importance and complexity of the matters in dispute
 s60 Uniform Civil Procedure Act 2005 (NSW) or s9 Uniform Civil Procedure Act 2010 (Vic) has similar
provisional purpose, similar principles but variation of expressing provisions
- whether or not procedure statutes or rules refer expressly to proportionality, this is a fundamental principle
of case management that it does not need express mention
 because it is a non-technical concept
 the goal is to strike a balance between the need for justice on merits, to resolve disputes with minimum
outlay and the need for timely resolution
- proportionality is not just a measure of economy but a means of achieving correct outcomes – overriding
objective

Imperative of timely resolution

- excessive delay may affect outcome of litigation in two distinct ways:
 undermining court’s ability to determine facts as evidence could deteriorate/disappear
 undermine the justice of adjudication as judgement would be too late to be of practical use to the
winning litigant – eroding the ability of court to redress wrongs

Overriding objective – a matter of compromise

- litigants and court resources may be incompatible with expeditious resolution
- different judges may come to different conclusions but nevertheless this does not mean courts have
unlimited discretion  attention to developing patterns of case management

Parties’ duty to cooperate

Duty to assist the court
- adversarial system of civil procedure demands that the parties have to fulfil process requirements ie.
present evidence
- s37N(1) of Federal Court of Australia Act 1976 (Cth)
- s10 of Uniform Civil Procedure Act 2010 (Vic) provides that the overarching obligations apply to any person
who is a party to proceedings
 s16 imposes a duty to ‘further the administration of justice in relation to any civil proceeding’

Duty to cooperate with opponents

 - parties must respond positively to reasonable requests
 a significant cultural change from the adversarial system experienced under the Old System
- s37N(1) of Federal Court of Australia Act 1976 (Cth) extends to negotiations for settlement of disputes
- s20 of Uniform Civil Procedure Act 2010 (Vic): party to cooperate with other parties

What are things that are still lacking in procedural reforms for access to justice:
- access to legal representations
- cost increase
 basically, difficult to get resources whether it is financial resource or legal resource (lawyers)

Dame Hazel Genn, The Hamlyn Lectures pp68-69 (SM)

Common solutions
- introduction of ADR
- there is no suggestion that cases should be facilitated to the courts
- the main principle is efficiency
- the value of procedure becomes less and less clear because there is no concern of standards of evidence and
proof
- purpose of such reforms (ADR) is to provide more access to resolutions, but with less certainty about
whether capable of delivering accurate outcomes  less law and downgrading of civil justice
- generally exploited by large commercial businesses and everyday lower-value problems of citizens

4. CASE MANAGEMENT

The Courts’ extensive case management powers, including powers to set timetables, limit discovery, refer
parties to mediation, restrict oral argument and penalize parties for non-compliance—in each case for the sake
of improving fairness and reducing cost and delay.
But might there be a tension between those goals, on the one hand, and individualized justice and party
autonomy, on the other?
Does the case management function take judges too far from their core role and into areas where they lack
expertise?
Do case management reforms actually save costs overall, or do they simply shift costs from the state back to the
parties?

Topics
- Case management, the adversarial system, party autonomy, party control
- Traditional approach to management and compliance
- current approach to management and compliance
- consequences of failing to comply with case management orders
- criticism of case management
- future reforms

Civil Procedure Act 2010 (Vic), Part 4.2 (ss47-53)

Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths, 2018):
o [1.23]-[1.31] (on justice on the merits) (TB)
Recall: 3D conception of justice: justice on merits, proportionality of resource use + timely adjudication
(1) The emergence of justice on the merits approach
- Although there was resistance for change in the profession, once there were reforms made in Judicature
Acts, the judiciary embraced the new approach to procedure with enthusiasm
- Judges no longer willing to allow pedantry and technicalities to get in the way of real merits of the case
 Judicial approach to litigation was based on principle doing justice on merits of the case rather than just
enforcing compliance with rules or court orders
- A popular cited judgement is the dissenting judgement of Bowen LJ in Copper v Smith: costs ‘heals every
sore in litigation’
- Prior to justice on merits approach: there was belief that ‘no formality stand in the way of solid justice. The
court is directed to make every amendment... to do what is right between the parties, and in the fairest...
manner possible’ (Isaacs J I Shannon v Lee Chun)
- justice on merits philosophy dominated civil procedure (triumph over case management decisions) in Aust
for a significant period of time
 Black v City of South Melbourne: HC allowing the appeal to allow amendment to the statement of claim
was a proper exercise of judicial discretion
 But a popular English case is Birkett v James: non-compliance with process was not sufficient to dismiss
the action because courts should not deny justice on the merits (Lord Diplock elaborated on this)
 Similar decisions to ^ made in Aust – Rust v Barnes: failure to comply with Supreme Court Act but NSW
Supreme Court held that case should still not be set aside
- Obiter dicta in Queensland v JL Holdings:
 ‘case management... should not have been allowed to prevail over the injustice’

o [1.57] (summary of Aon Risk Services v ANU)

- Seminal authority on the overriding objective in Aust
- On the 3rd day of a 4-week trial of a proceeding which had been on foot for two years, ANU applied for an
adjournment and for leave to amend its statement of claim to add a substantial new claim against Aon
- At first instance, ANU’s application was granted, but later in the HC it was denied – French CJ said:
‘[previous courts] should have taken into account that, whatever costs are ordered, there is an irreparable
element of unfair prejudice in unnecessarily delaying proceedings... a truism that ‘case management
principles’ should not supplant (displace) the objective of doing justice between the parties according to
law’
 Case management should not undermine merits on justice
 This case expanded justice to incorporate interests of other litigant and the general public
 the court’s power of case management is not limited to amendment to pleadings, and is a correct
approach to interlocutory proceedings which has regard to the wide objects of administration of justice.

o [1.80]-[1.94] (introduction to case management) (TB)

Court control – adapting process to dispute
- The overriding objective aims to avoid the excesses and inefficiencies of the Old System by ensuring
processes followed for the resolution of a particular case are appropriate and adapted to the needs of the
dispute
- End the rules of court entrust the responsibility of case management to the court, which require it to act in
accordance with the overriding objective
 Notion of proportionality is central to this = it denotes a correlation between the processes employed in
any given case and the following factors: the amount of money in dispute, the importance of the case
and its complexity and financial position of each party

Court control – discretionary powers guided by the overriding objective

- The powers to excuse procedural defects are the same as under the previous system
- P35: There remains to be a tension between the rule and discretion
 But a failure to obey rules does not of itself invalidate proceedings
  Nonetheless, there are sanctions for failure to comply with rules/orders, but the court (do have the
discretionary powers) to grant relief to defaulting litigants and spare them from suffering the stipulated
consequences of default
- There is a fundamental difference between contemporary case management v Old System procedure – in
that modern general discretionary powers and now subservient to the overriding objective and its policies
- Non-compliance with court rules/orders are now treated differently because the need to reach a correct
outcome/timely resolution/parties + courts’ resources have to be considered
 The need to establish justice on the merits (per the Overriding objective), rather than merely
disqualifying parties for non-compliance to court’s case management
- There has not been a big change of the underlying structure of the general discretionary powers, but
changes concerning the principles governing their exercise

The new approach of adapting process to dispute

- Differentiation in allocating procedural resources is a demand of justice
- A risk of error is inherent in any procedure but the magnitude of the harm caused by an error varies
according to the value at stake or the importance of the dispute
 Eg. a mistake about an entitlement to $30k is different from a mistake about an entitlement to $1m
- P36: There are several methods (aka forms of case management) for matching process to disputes:
 P36: 1st: matching courts to disputes = in tiered courts whereby lower tier courts decide simple cases
while important or complex disputes
o Known as the jurisdictional technique: where different courts have jurisdiction over different types
of cases – higher tier courts being staffed by better-qualified and more senior judges
o However, this jurisdictional approach has a disadvantage of the allocation criteria tend to be
inflexible and end up making unsuitable matches between disputes and courts
 2 : matching procedure to disputes as the same court may have range of processes at its disposal
nd

o The disadvantages: may fail to achieve a reasonable match between disputes and processes if
criteria for allotting cases to these various procedures are inflexible
- Both of these methods encourage cases towards the superior courts or towards the more formal and
demanding procedures
 This is due to the benchmark of justice which is defined as the superior courts employ the most
demanding procedure, whilst inferior courts dispense inferior justice because less senior judges follow
more summary procedures
 This is also due to upward pressure has to do with financial and tactical incentives
o Especially if lawyers earn more from litigation in superior courts, they may be more tempted to
direct as many of their clients to those courts as they can
o Clients too may want to consider expensive processes to intimidate their poorer opponents
 It seems a shadow of the Old System remains
- 3rd: Another method is disputes can be adjusted to process
 Professor Ian Scott: an alteration in the processes adopted may have a bearing on what parties dispute
and how they go about it
 As parties and lawyers respond to economic and other incentives and that these too may affect the
nature of a given dispute, its complexity and its intensity

Implications of proportionality for case management

- Case management powers are essentially discretionary, considerable attention needs to be given to the
manner in which this discretion is exercised
 Usually, the court’s discretionary powers must be exercised with a view to promoting the overriding
objective
- P432: Case management is consistent with the adversarial system
o Aust adversarial system has 3 principal features: party autonomy, limited judicial responsibility for
outcomes and party control of the litigation process
 o While the shift in litigation control to the court has not affected the first two features, it has
significantly altered the third feature
 Party autonomy renders most process requirements electable
 Judicial responsibility for outcomes limited to the evidence and arguments presented by the parties
o Managerial judges and the adversary system

Seminar Notes
Case Management
= the court has authority/discretionary power to make decisions about how a case progresses, not about party’s
roles/influences to the litigation process
- “judicial rather than party control of civil proceedings”
- Inherent jurisdiction: the power of the court to control its own jurisdiction, it ensures the independence of
the court
- Disadvantages of case management:
 Encouraging adversarialism manner
 Inflexibility of the matching process to disputes – court has wider power

What problem(s) is Case Management intended to resolve [resolve Old System defects]?
- Court has a more active role, not only reactive role
- More appropriate costs attached
- VLRC Civil Justice Review (2008, pg297)
 One objective of active case management is to encourage and require the parties, their lawyers and
those funding the litigation to limit the issues in dispute. The courts have an obligation to control
proceedings but it is also up to the parties to not take unnecessary steps or burden the court with
superfluous documents or applications. The courts are and have been actively managing cases for many
years. The courts have inherent jurisdiction to manage cases and do not necessarily need court rules to
do so. Notwithstanding this, we consider there is a case for more clearly delineated, explicit powers to
actively case manage. This will assist the courts and the lawyers, parties and funders to turn their minds
to the real issues in dispute and the most efficient means of resolving those issues.
- Aon Risk Management Service v ANU [2009] HCA 27 (principal case – good case on policy issues)
 [113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s
assistance as required. Those times are long gone…. It is recognised by the courts that the resolution of
disputes serves the public as a whole, not merely the parties to the proceedings
 New system is much more than protecting interest of the parties, but focus on protecting the public
interest by protecting the legal system as a whole ie. through allocation of resources
 Interest of existing case maybe in conflict with the interest of public – raises question for ‘justice to
merit’
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited
[2013] HCA 46 – eg. of case management by SC of NSW
- Facts: NSWSC should have ordered that the respondents returned 13 privileged documents which had been
in advertently (unintentionally) disclosed to them by the appellants’ solicitors during a court-ordered
process of discovery.
 It is important that a party making an inadvertent (unintentional) disclosure should act promptly, and
relief of returning the privileged documents would be refused if it would be unfair to order so
- [56] Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct
of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist
the court in furthering the overriding purpose.
- Civil Procedural Act 2010, Part 4.2 (ss47-53) imposing judicial power on the proceedings through:
 the parties and the lawyers have a duty to ensuring the overriding objective
 - Overarching purpose of case management (s 47(1)): in the interests of administration of justice, and
public interest.
- Active case management: s 47(3)
a) Give directions to ensure prompt and efficient conduct of the civil proceeding;
b) Identify at an early stage the issues involved:
i. Order or direct parties to consult and prepare a statement of issues which identifies and
ii. summarises the key issues in dispute: s 50(1);
c) Decide the order in which issues in dispute are to be resolved;
d) Encourage the parties to cooperate, to settle, and to use appropriate dispute resolution;
e) Control the progress of the civil proceeding by, eg, fixing timetable;
f) Limiting the time for the hearing by, eg, limiting the number of witnesses at the hearing, limiting
the time for (cross-)examination of any witness, limiting the issues or matters that may be the
subject of the (cross-)examination;
g) Consider the cost of taking particular step against the likely benefit of such step.

The court may make order or give direction to further the overarching purpose in relation to pre-trial
and trial procedures, and to the conduct of hearing: ss 48, 49.

Contravention of case management orders or directions: s 51

a) Dismiss the proceeding;
b) Strike out the pleading;
c) Disallow or reject the evidence;
d) Direct the person to pay the whole or part of the costs.

- Case management in CPA to address the non-compliance of procedures (as seen in Aon Risk)
- To address Normative deficit: rules that are not really rules, because often are non-complied by people
[Zuckerman 11.28-11.29]

Civil Procedure
- How CM works – the steps in proceedings:
 Case management is not a stage, but a process throughout civil proceedings (diagram in slides)

 Case management when referred to, is always in relation to pre-trial progress – not parties consider
alternative to litigation via settlements (ADR)
 CM operates as part of a larger and lengthier process; it is a total approach to the running of litigation,
not just a discrete stage in the litigation process, though obv pre-trial focussed – though note that
through Part 4.1 of the CPA, parties are already under an obligation to have sought to narrow and even
resolve the issues before the courts become involved in a dispute (and parties must certify that they
have so sought at the time proceedings are commenced). Litigants and their representatives should
 therefore be aware that once a dispute reaches a court they should be ready to proceed relatively
quickly and efficiently.
 Court will use ‘directions hearings to manage both the timeline and the steps necessary to be taken to
bring the case to trial (lots of the old system procedural processes have effectively been made
discretionary or at least less onerous)
 CM decisions may be made at any stage by any judicial officer – not necessarily the judge who is
ultimately set down to try the case. Indeed, most state supreme and federal courts have ‘procedural
judges’ for whom CM is a key function eg SCV – Associate judges (textbook – 11.33 - refers to older term
“masters” – still used in some jurisdictions – eg SA.)
What can CM do?
- Enabling/requiring the setting of a firm trial date
- Establishing a clear timetable for pre-trial steps
- Encouraging the parties to narrow down issues to main issues
 the courts (presiding judge to be specific) would do this by providing direction or orders on the
procedural steps to the parties
 encouraging the parties to determine the cause of action in order to narrow down the issues in the case
- limit/control the evidence brought in
 the extent of discovery which is appropriate
- encouraging or promoting settlement
 compliance powers: CPA s51
o an order by the court is through demanding costs (aka penalizing the non-compliant party)
o other sanctions could be not allowing evidence to be submitted, not hearing the case at all (but this
still might be accompanied by a penalty cost)
o idea behind sanctions that ‘money cure everything’
 management powers: CPA s47, s48
o s47 (1)-(3): how courts can actively manage cases  then it also goes on to make provisions for a
variety of CM powers with reference to specific types of directs a court may make
o all these powers to the court are discretionary, courts may or may not act on it – their exercise will
be fact-dependent
- However, the effectiveness of CM depends upon party compliance with court rules and orders
 But the court’s response to noncompliance shapes the nature and efficiency of the litigation process
o S50 CPA: power of the courts to order a legal practitioner acting for a party to estimate hearing
length and associated costs and disbursements – and to provide this in writing.]

Seminar Notes
Policy Considerations
(1) Does CM undermine the adversarial system? (Zuckerman, 11.7-11.27; 11.57-11.61)
- Adversarial system
o Party competition (individualistic model underpins this  ‘party autonomy’, which influence ‘party
control’ not ‘judicial control’)
 interests (conflict)
 facts/narrative – who’s narrative is better?
 Party autonomy is largely retained – over(key) decisions: whether to litigate, what to litigate and
whether to withdraw from litigation
 Party control – the court has always had a degree of control over parties – this has greatly increased re
court control over how to litigate
 Control over nature of process and timetable
 Ex-ante control over specific procedures to ensure civil process is used in ways that are just,
proportionate and timely
  Greater use ex post of powers to address non-compliance (but powers must also be used
proportionately)
 Limited judicial responsibility for outcomes due to Adversarial nature of trial itself – judges continue to
have limited control over presentation of evidence and (consequent) outcomes [but, eg s47, continues
reduction in ‘orality’ principle]
 Zero-sum game
 Judicial independence
= It doesn’t necessarily undermine the adversarial system but it changes the nature of the system. Biggest
changes at the margins where there is some element of misbehaviour by party/representative or a real risk
of misuse of the court process is likely.

(2) Does CM undermine the Rule of Law?

- Efficiency – rule of economics vs ROL – ‘rationing justice’ over ‘merits-based’ adjudication? Aon Risk.
Equality of arms?
- More transparent and less tactical (so more ‘on the merits’ rather than the traditional classic adversarial
model)?
- The problem of sanctions (again) – undermining respect for law?
 The (ab)use of compliance power
- For or against settlement (culture) (Fiss)?
 Against settlement culture rationales:
o Provoke compromise
o “Justice” may not be achieved
 Not rights-based eg. no resolution is done, just got paid off
 Lacks transparency
 Private and confidential processes
o Does not produce precedent
o No accountability
 AON Risk v ANU Case: ANU seek to amend its pleadings, to submit a substantially different case
o ANU’s argument to amend its pleadings considers the ROL which considered HC’s statements in JL
Holdings case: that the 'ultimate aim of a court is the attainment of justice and no principle of case
management can be allowed to supplant that aim'. Further, case management should not 'prevail
over the injustice of shutting the applicants out from raising an arguable defence, thus precluding
the determination of an issue between the parties’.
o However, HC in AON dismissed ANU’s application to amend its pleadings and held the statement in
JL Holdings should not be followed  CM undermining ROL
- Judicial independence – actual or perceived risks?

(3) Does CM actually work – its practicality?

- Steven Gensler, ‘Judicial case management: Caught in the crossfire’ (2010) 60 Duke law Journal 669, 672
 “Though we are nearly 30 years into the case management era, many practical questions about the real
world effectiveness of judicial case management remain at least partly unanswered. Does judicial case
management really work? Does it actually reduce expense and delay? Do judges have the right tools at
their disposal? Are judges sufficiently and properly using the tools and resources they do have?”
 There is still increasing concern for CM’s impact on efficiency/delay

Les Authur, ‘Does case management undermine the rule of law in the pursuit of access to justice?’ (2011)
- CM requires judges to ration (allocate) the procedural devices available to parties
- Such rationing may impede the ability of a party to acquire facts to support a case or prevent a party from
presenting an arguable case
- But, rationing of procedural processes is essential to achieve effective access to justice without derogating
from procedural fairness which is fundamental to ROL  t/f not to undermine ROL
- What we learn from Aon v ANU: procedural obstacles should not prevent a party from advancing an
arguable case
- It is important for judges to balance the substantive justice with a procedural philosophy which is mindful of
the efficient administration of justice and to consider the appropriate sanction for failure of parties to
comply with process requirements
- There are limitations to CM which affect administering justice:
 The idea that costs can normally cure any non-compliance with procedural rules  exploit by the
wealthy parties
 Consequences of delay to other parties in the court system
 Possible dismissal of the case due to tardiness of legal representatives
- ROL in general demands fair and transparent procedures which primarily focus on establishing the correct
facts, not about presenting all the facts a party has gathered
- CM process is essential to allow adjudication on the merits
- It replaces the adversarial litigation culture with a culture based on a cooperative ethos to encourage the
presentation of an arguable case with the efficient administration of justice – the enduring lesson of Aon
- No undermining of ROL

5. ALTERNATIVE DISPUTE RESOLUTION

How might we ensure the fair resolution of disputes other than by adjudication?
In previous classes, we explored the problem of access to justice. We saw that, for many people, the legal system is
too costly, too slow and too complex. One response to the crisis in the civil justice system has been to divert people
away from the court system and into what is usually called “alternative dispute resolution”, “ADR” for short.

The use of ADR techniques, such as mediation, have been adopted, more or less enthusiastically, by policy-
makers, courts and practitioners. Proponents of ADR have argued that it offers a cheaper, faster and more
flexible form of dispute resolution than litigation.
Section 22 of the Civil Procedure Act 2010 (Vic) provides that a person must use reasonable endeavors to
resolve their dispute by agreement, including by using ADR, through processes referred to as “appropriate
dispute resolution” in the Act. Courts are also empowered to refer parties to mediation.

But some have raised concerns that the shift towards ADR comes at a significant cost.
In this seminar, we will critically examine the use of ADR and mediation in particular.

Topics
- In Vic, how is ADR used in order to address the problems associated with court-centred dispute resolution?
- What are the strengths + weaknesses of mediation?
- Does ADR create any problems of its own?
- What is the lawyer’s role in the ADR process?
 the ethical issues arising in mediation

Required Readings
• Civil Procedure Act 2010 (Vic) ss 7, 22, 47, 48, 66, 67 (LMS)
• Supreme Court Act 1986 (Vic) ss 24A, 27A (LMS)
• Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 50.07 (LMS)
• Evidence Act 2008 (Vic) s 131 (LMS)
• Solicitor’s Conduct Rules 2015, Rule 7.2; 22

ADR features
- Traditionally not binding
- Private and confidential processes
- Minimal formality

 Zuckerman on Australian Civil Procedure (Chapter 29)

Introduction
Genn pp80-81: “Alternative dispute resolution is an umbrella term which is generally applied to a range of
techniques for resolving disputes other than by means of traditional court adjudication for example mediation,
early neutral evaluation, arbitration... with the exception of arbitration and mini-trials, most forms of ADR are
species of facilitated settlement.”
- A dyadic relationship is turned into a three-way by introducing a third-party to the process ie. mediator
- Third party has a more active role than a judge in trying to find a common ground settlement
- “the term alternative dispute resolution is somewhat of a misnomer in contemporary litigation... integral to
the litigation process” – Zuckerman [29.2]
- Parties cannot use ADR as a means to oust the jurisdiction of the court

CPA 2010 – s66: Court’s power to order mediation

- Court has taken out the ‘party control’ element out of ADR
- But when we think of compliance and formality in ADR, similar to the court as it can take failure to
compliance to account for penalty

Supreme Court (General Civil Procedure) Rules 2015

(SR No 103 of 2015) – Reg 50.07: Court’s power in relation to the Mediator

Why? What are the benefits of ADR?

- More efficient
- Less strain on resources – cost effective
- Less of emotional cost
- The approach to achieving settlement will not depend on reference to legal rights or the legal merits of the
dispute, but will approach the dispute as a problem capable of solution
- Privacy of resolution in terms of both process and outcome – a key feature retained even in court-annexed
ADR processes (annex= subordinate part of)
- Confidentiality of ADR transcend in courts
- S131 Evidence Act 2008 (Vic): evidence of settlement negotiations is excluded in court
- S24A Supreme Court Act 1986(Vic): unless all the parties who attend the mediation agree in writing, no
evidence of mediation is admitted in hearing of proceeding
- S67 CPA (Vic): if court orders ADR to be conducted in relation to civil proceeding, no evidence from ADR shall
be admitted at the hearing of proceeding unless court orders otherwise on grounds of justice and fairness
- Settlement can incorporate anything to which the parties will agree and does not have to bear any
relationship either to the type or to the magnitude of any remedy that would have been available under the
law. In theory can be more creative than courts with their ‘limited remedial imaginations’ (citing Menkel-
Meadow) {“satisfaction story”]
- Element of restorative justice – people who has suffered harm, they can bring up their case again without
going through applying for appeal (case appraisal)
- May be enforceable – eg. under contract, procedural rules, or (commonly) if the parties agree to convert the
outcome into a consent order
- Mediation in particular is seen as potentially transformative [“transformation story”] - about identifying and
addressing the parties different interests and seeking to achieve a settlement that maximises the
opportunities for both sides to achieve their interests - (non-positional) “win/win” (possible in partisan
negotiation too – in theory). Linked to this is a “social justice story” (Genn/Baruch Bush & Folgar) that uses
the power of mediation to reframe disputes around common causes and interests [“So, for example, in
neighbourhood mediation tenants might be helped to see that rather than focusing on their grievance with a
 neighbour, they in fact have a larger interest in common with their neighbour and against their landlord. The
potential of mediation to achieve this kind of ‘social justice’ outcome is most often promoted by scholars and
commentators involved with grassroots community organisations” – Genn 89]

Mediation
Privacy, confidentiality and without prejudice privilege
The utility of mediation

Models of Mediation
- ‘a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner, identify
the disputed issues, develop options, consider alternatives and endeavour to reach an agreement’.
- Process focuses on parties’ interests, not their positions
- Facilitative aka problem solving model
 Mediator assists to ‘identify, clarify, and narrow’ issues and generate possible options for settlement and
‘self-determine’ a resolution to the dispute
- Evaluative
 Mediator evaluated or gives his/her opinion on the strengths and weaknesses of each party’s position
and sometimes the likely result if the matter was to go to adjudication.
 Not binding, but influential in cases were party’s position is untenable or is in stifling progress in
mediation.
- Therapeutic aka transformative
 Seeks to improve the relationship b/w the parties on the assumption that the dispute is symptomatic of
a problematic relationship
 Mediation centred on reforming the dynamics of the relo b/w parties which have given rise to the
dispute
 Used commonly in family and children’s care disputes
- Settlement
 Focus on reaching a compromise between the parties’ positions

Court-annexed ADR
The power to refer
Case appraisal and evaluation
Judicial mediation

Intro
- ADR processes that courts have the power to refer to: mediation, settlement conferences, arbitrations,
appraisal, and early neutral evaluation.
- Distinctive feature of court annexed ADR= referral to facilitative ADR processes may be on the court’s own
initiative.
 Parties don’t need to apply or consent to process per s66(2) CPA 2010 (Vic)
 For the purpose of negotiating a settlement of civil proceeding or resolving or narrowing the issue in
dispute (CPA 2010 (Vic) s 3)
- Litigation= gives parties access to wide range of info about opponents’ case b/c of pleadings, discovery,
subpoenas and written evidence.
- ‘multi door courthouse’ approach= inclusion of ADR in civil procedure
 courts give variety of ADR.

The power to refer

- power to make referral is at court’s discretion w/ regard to case’s circumstances.
- Factors that will be of consideration:
  Costs
 Attitudes of parties to ADR / whether parties are under independent obligation to mediate.
 Likeliness that it will lead to resolution.
 If it has failed previously
- If parties had independent arrangement for mediation or arbitration- it’s an improper use of court’s referral
power to interfere/modify those voluntary arrangements made by parties
- If a court is unable to stay a proceeding b/c of nullity affecting the arbitration agreement, it cannot use its
court referral powers to refer the matter to arbitration.
- The power to refer to court-annexed ADR is statutory and not based on prior agreement b/w parties to
submit to ADR. There is still no reason why a court cannot view an unenforceable dispute resolution clause in
agreement as evidencing a willingness by the parties to consider court-annexed dispute resolution generally.

Case Appraisal and evaluation

*29.57- 29.58* didn’t do this one b/c it was about QLD

Judicial mediation
- ‘confidential, consensual form of dispute resolution facilitated by a sitting judge who is trained in conflict
resolution.
 Can be retired or current judge
- Advantages
 Reduce cost and strain on resources associated with litigation
 ‘gravitas’ of the judges increases the chances of a successful settlement
o Judges’ moral authority deriving from public’s perception of judicial office’ – can encourage the
parties to a dispute to participate meaningfully in the process.
 Pressure on courts to embrace ADR to avoid courts being ‘marginalised’ by governments that are seeking
to reduce public expenses of civil justice.
 Skill set of judges is useful in conducting mediations
- Disadvantages
 Apprehension of bias
o when judge meets each party in absence of the other and has acted as mediator in one of the
proceedings
o where a judge involved in judicial mediation in one proceeding is called upon to adjudicate a related
one
 is the outcome a “substantive just(ice)”?
- the outcome can be creative, more interest based
- “the outcome of settlement is not about ‘just settlement’, rather just ‘settlement’” - Genn p116
- Not rights-based
- Lacks transparency
- Private/confidential  and so, lack of scrutiny to the mediation because it’s a private process
- Principle of neutrality facilitated by the mediator
- Not their role to help out the weaker party, party would rely on their own legal representation

How are Solicitors governed in ADR?

- Definition of “court” in Solicitors’ Conduct Rules (Vic): includes ‘an arbitration or mediation or any other
ADR’
- SCR defines a “court”
a) any body described as such;
b) any tribunal exercising judicial, or quasi-judicial, functions;
c) a professional disciplinary tribunal;
d) an industrial tribunal;
 e) an administrative tribunal;
f) an investigation or inquiry established or conducted under statute or by a Parliament;
g) a Royal Commission;
h) an arbitration or mediation or any other form of dispute resolution.

- R3.1A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of
inconsistency with any other duty.
- R4.1.2 be honest and courteous in all dealings in the course of legal practice;
- R5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that
the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
- r5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
- r5.1.2 bring the profession into disrepute.
- R22 – communication with opponents: r22.1 A solicitor must not knowingly make a false statement to an
opponent in relation to the case (including its compromise).
- 22.2 A solicitor must take all necessary steps to correct any false statement made by the solicitor to an
opponent as soon as possible after the solicitor becomes aware that the statement was false.
- Legal Services Commissioner v Mullins [2006]: Byrne J held that mediation could not be approached, either as
a matter of fiduciary law or as a matter of professional conduct [by virtue of equiv rules to r.22 in Qld
barristers conduct rules] as an “honesty free zone” [but stopped short of saying misleading mediator was
equivalent to misleading the court in and of itself]
- “The fraudulent deception the respondent practised on Mr Kent and Suncorp involved such a substantial
departure from the standard of conduct to be expected of legal practitioners of good repute and
competency as to constitute professional misconduct.” > public reprimand, fine of $20,000 + costs
-  s22 should also apply to ADR, not just in courts
- Should SCR apply to mediation?  Is it like court – duty not to mislead court or opponent, or is it like
business negotiation – a bit of an ethics free zone?

CPA and Settlement

- Begin with s7 CPA, then consider ss10-25

Mark J Rankin, ‘Settlement at all cost: The high price of an inexpensive resolution?’ (2009) 20 ADJR 153 (SM)
- P154: Currently, we see the courts’ policy promoting settlement over adjudication as a means to address
dispute
- The common rationale for this is that courts see it will bot private cost savings for individual litigants and
public costs savings through the easing of the business of overcrowded courts
 P155: The problem with courts’ policy is that it is assumed to be the courts’ sole justification for
promotion of settlement
 But it may lead to practical deeper issues, specifically will this result in courts side-stepping justice in the
process?
 As it is always through adjudication that justice is administered
- P156: Justice in our society is changing – it is nevertheless possible to compartmentalize justice into
substantive justice and procedural justice
- There has been a clear preference for procedural justice by litigants as their perceptions about procedural
fairness is that it will affect an outcome which will be viewed as substantially fair
 Procedural justice leads to a substantive justice
- However, settlement generally fails to provide adequate procedural justice
- The benefits of adjudication are often overlooked by the courts in their pursuit of the assumed costs savings
settlement
- P157: Benefits of adjudication
 Public good  to achieve substantial social and political change
  It carries powerful symbolic messages for societal transformation through its establishments of
precedents and publicity/transparency nature
o P159: Settlements do not create precedents
o Settlements are done privately
 Luban agrees: “a world without adjudication would be a world without public conversation about the
strains of commitment that the law imposes”
- Disadvantages of reversing the support to promote settlement
 There will be too many disputes to have them all adjudicated effectively
 Settlement is already the reality of our legal system
- P160: Therefore, it is better to view settlement + litigation, not as processes in a competition but as
“complementary, mutually reinforcing social processes”
- The modern legal system should incorporate values from both and establish the more contemporary notion
of what is “justice”
- The aim should be to find a favourable balance between settlement and adjudication

Dame Hazel Genn, Judging Civil Justice – The Hamlyn Lectures 2008. ‘ADR and civil justice: What’s justice got
to do with it?’, page 78-92 and 114-121
https://doi-org.ezp.lib.unimelb.edu.au/10.1017/CBO9781139192378.004
- P78: the question is how the public purpose of the civil justice system – in supporting social and economic
stability – is achieved in a climate of strained resources and when the demands of criminal justice seem to
be unstoppable.
- I argued that we have been presented with two competing narratives about civil justice:
 that there is not enough access to justice and
 that there is too much litigation.
- As far as the government and some sections of the judiciary are concerned, the answer to both arguments
seems to be diverting cases away from the courts and into private dispute resolution processes and in
particular mediation.
- This trend is true of policy in relation to family disputes, civil and commercial disputes and, more recently,
administrative justice disputes involving citizen and State. In this context I am interested in reflecting on who
and what is driving ADR policy, and why.
- P79: My focus is principally on the promotion of ADR for non-family civil disputes and, in particular, judicial
and government policy on mediation.
- While my interest in civil justice reform has inevitably led to engagement with ADR policy, I have also
developed a good ground-floor feel for what mediation offers and for its limitations as a result of having
undertaken a number of evaluations of court-annexed mediation schemes in England over the last decade.
 These evaluations involved talking to litigants who had chosen to mediate, those who had rejected the
opportunity to mediate, those who felt they had been forced to mediate and those who would have
liked the opportunity to mediate. I have watched mediations. I have talked to lawyers about mediation
and to mediators about mediation.
- P79: my position on mediation is that it is an important supplement to courts. In my view, mediation has
rightly become a feature on the landscape of dispute resolution – an option for anyone unfortunate enough
to have become involved in a civil dispute
- P80 – three main concerns:
 First, I am equally clear that mediation is most appropriate and successful when the parties enter the
process voluntarily.
 Second, that ADR cannot supplant the machinery of civil justice precisely because, in civil cases, the
background threat of litigation is necessary to bring people to the negotiating table.
 Finally, and most importantly, I am concerned that the case for mediation has routinely been made not
so much on the strength of its special benefits but by setting it up in opposition to adjudication and
promoting it through anti- adjudication and anti-law discourse.
- P86: the proponents of mediation are anti- adjudication and anti-litigation and the proponents of
adjudication are ‘against settlement’.
- Philosophy of mediation by Baruch Bush and Folger – 4 different stories:
 P87: as satisfaction story to satisfy human needs and reduce the suffering for parties to individual
disputes
 P88: second is transformative potential: mediation has a unique capacity to ‘transform the quality of
conflict interaction itself, so that conflicts can actually strengthen both the parties and the society’ of
which they are part. Again, the informality, flexibility and con- sensuality of mediation permits parties to
define their disputes or ‘problems’ and goals in their own terms and helps them to mobilize their
personal resources to tackle their problems and to achieve their goals
 P89: social justice story: he capacity of mediation to ‘reframe issues’ and focus on common interest
means that those involved in disputes who initially see themselves as adversaries can be assisted to
appreciate a ‘larger context’ and to see that, perhaps, the disputants face a common enemy.
 The fourth story highlights the negative potential of mediation: the oppression story
o P90: it increases the power of the strong over the weak. Precisely because it is an informal and
consensual process it can be used as an inexpensive and expedient adjunct to formal legal processes
seeming to increase access to justice, whereas in fact it can magnify power imbalances and open the
door to coercion and manipulation by the stronger party.
o At the same time, it is argued that the posture of neutrality relieves the mediator of responsibility
for preventing this and thus, resulting unjust outcomes
- P91: these different evaluations of the benefits and dangers of mediation reflect the diversity of conflicts
that require resolution or determination and the different approaches and goals of mediation.
- P118: per Carrie Menkel-Meadow: She suggests that mediation provides a responsive and individual
solution to legal disputes which does ‘no worse harm’ to the parties than non- resolution of the dispute. We
should not, therefore, be measuring the outcome of mediation in terms of access to justice or what the
parties might have achieved via a well-functioning justice system. We should simply be measuring the
outcome of mediation against doing nothing.
 P119: Mediation will only provide an access to justice-benefit for those who are currently taking no
steps to achieve a resolution of their dispute
- P119: What mediation is offering is simply the opportunity to dis-count their claim in order to be spared the
presumed misery and uncertainty of the adjudication process. Indeed, the same thing that ordinary
settlement offers and the same inability to imagine an adjudication process that could be less miserable.
- The judiciary plays a role in promoting ADR
 P121: From the perspective of strained resources, growing caseloads, reducing levels of administrative
support, increasing numbers of litigants in person who cannot afford legal representation and cannot
obtain legal aid, the anti-litigation/anti-adjudication/pro-ADR story may begin to look attractive.

6. THE ROLE OF THE LAWYER

What is the proper role of the lawyer?

In previous classes, we examined the overall structure of the Victorian civil justice system, focusing on courts
and ADR. In this class, we consider one element of that structure: the role of the lawyer.
According to the official conception of the lawyer’s role, as reflected in the relevant jurisprudence, the
paramount role of a lawyer is to further the administration of justice: see s 16 of the Civil Procedure Act 2010
(Vic) and Rule 3 of the Solicitors’ Conduct Rules 2015 (Vic).

But how should lawyers understand their responsibility to further “justice”? Must “justice”, for lawyers, always
mean justice as the legal system understands it? If so, is the lawyer a mere functionary, bound to serve the
system’s and the law’s values, whatever those values might be? And, if so, is being a good lawyer always
consistent with being a decent human being?
How should we relate to the official conception of the lawyer’s role? Should we subsume ourselves within it? Or
should we maintain some independence from it?

Topics
- Why might it be said that lawyers are needed for the legal system to function?
- What are lawyers’ core systemic functions?
- How should we, as moral agents, relate to those functions?
- What is the role of lawyers in dispute resolution?

Seminar Exercise (and notes): refer to The Mediation Story for James and Han

Seminar Notes
What is a lawyer’s role?
- What do we do for our client – representing their interest
- Stephen Pepper Sem 6 readings – Justification for the Amoral Role – enabling “first class citizenship”
 Basically, the challenges/issues for lawyers: conflicting duties
 Lawyer’s amoral role:
o The lawyer’s backstop (barrier/support) is its legality
o Whilst the client – centered
 Amoral = because morality is neutral, being moral isn’t the main concern of a lawyer, but rather
the lawyer focuses on “partisan” manner
 emphasizing on client’s interests
 Morality of a lawyer depends on their client’s
 What are the premises that Pepper highlights
o P616: Law is a public good
o We value autonomy
 Having a social commitment to
o Autonomy is (largely) dependent on access to the law(yers)
 The main challenge
o How much agency do we (lawyers) have due to our amoral role?
 None, amoral fundamentally denies moral agency of lawyers
 Therefore, it is our (as lawyers) moral responsibility [bottom pg617] – the lawyers become the
moral arbiters
 So, this puts our autonomy ahead of the “citizens” (aka clients)
 And lawyer’s backstop (knowledge) of legality becomes an issue here because it conflicts
with lawyer’s morality
 Eg. making illegal things moral OR the lesser legally sophisticated a lawyer is, the limited
access to law or if there is access that will subject the lawyer’s use of the law to the
moral judgement and veto of the lawyer – the constant fight between legality v
morality (pg618-619)
 Legal realism – the key critiques of Pepper’s position (Pg625-onwards)
o “bad man’s view of the law” (pg625) – always thinking about “how can I get away with my
responsibility?”
 Which makes us treating the law as something malleable as we are able to lose our morality
 Is breaking the law a justifiable business? Is it cheaper to breach a law and potentially
getting caught is actually a lesser risk to my compliance?
 Notwithstanding the amoral role argument, because it means the law itself combines with
lawyer’s morality
 The cost always benefits/exceeds the non-compliance
 Tug of war between social cost and cost for non-compliance
  Therefore, making the lawyers always engaging with “creating compliance” (lawyer’s
justifications for non-compliance)
 which is why we have rules/regulations for lawyers’ conducts (and clients’ activities) which
appear quite legislative-like but is still open to interpretation [back to Sem 4/5 materials]
 solution to “bad man’s” problem (pg630)
o ditch the amoral role?  “moral dialogue” – as a lawyer it would be sensible to engage the client
with moral dialogue because it retains the autonomy of a client but the client’s decision is then
informed by the lawyer’s moral judgement
 therefore, there is no complete denial of lawyer’s moral agency as their moral agency is
represented in a moral dialogue
 whose decision is it ultimately in the moral dialogue?  the client’s decision will always trump
the lawyer’s – this shows US lean towards a more client-centric system, whilst Aust is more
focused on duty to the courts for lawyers
 main critique v main point of agreement by Pepper
o challenges the assumption there is a strong correlation between legal norms and moral norms 
when in reality many things that are legal may not always be moral
o questioning the absolute value of autonomy
 for David Luban, autonomy is only good if it is used for good ends, otherwise it is not necessary
of good value
 Luban’s response: lawyers become the arbiters of what is good and right, not the laws itself –
but he is supportive of the “moral dialogue”
o Big difference between Pepper and Luban’s perspectives: what they think is the “moral dialogue”
 Pepper: moral dialogue as an exception, in most instances it is the amoral role we engage in
 Luban: by definition due to his skepticism, the expectation on moral dialogue is rather more
routined – because you (as a lawyer) will routinely give advice that steps beyond the legal

MacIntyre (1999)
- General issue on problematic relationship between social structure and morality
 Our moral judgement is affected by our social situations
- Moral agency (pg312) = ‘to be a moral agent is to be justifiably be held responsible for one’s actions in three
respects... ’ for their intentional actions, the incidental aspects of those actions that they should have been
aware of, and for at least some of the reasonably predictable effects of their actions
 Questions the foreseeability of morality  morality should prevail over simply acting out our legal
services (pg313)
 How different is this Moral Agency from Pepper’s:
o Is there a plausibility problem with Pepper’s version – does society accept the role of a lawyer is
amoral or does society tend to attribute moral agency to our role
o Realistically, the society as a whole may not buy the “amoral role”
- Questions the role of the Law Firm which influence the morality of the lawyers

Scenario: The Mediation Story

- Public policy focuses on concern with “what should we do?”  ethical question
- How to manage/regulate lawyer’s conducts?
 Ethical codes – this is harder to define than legislations
 Main issue for lawyers – conflict of duties:
o Duty to court (‘mediation’ extension of court’s authority)
o Duty to client
 What is missing: regulations to govern lawyers’ conducts
o a potential third duty that may arise: duty to the other lawyer (from opposition)
- CPA – rules that are litigation specific
  Duty of honesty
 Duty of cooperate (with other parties)
- LPUL ASCR 2015
 Legal Profession Uniform Law: Uniform Solicitors’ Rule 2015 (or Aust Solicitors’ Conduct Rules)
o Available Vic, NSW, WA (upcoming)
 Legal Profession Application Act – the parent Act
o Schedule 1
o List of regulations ie. ASCR 2015
o Rules 3 and 4
o Definition of “court” – broad
o Rule 22
- Legal Services Commissioner v Mullins [2006] LPT 012
 Issue: “fraudulent deception” – duty of honesty
o Professional misconduct
 Held: breach of duty to other lawyers, not a breach of duty to the courts

Required Readings
- Seminar 6 – the proper role of the lawyer
 Lawyer’s paramount role is to further the administration of justice – s16 of CPA 2010 (Vic) and Rule 3 of
Solicitors’ Conduct Rules 2015 (Vic)
 Lawyer’s perception of “justice” – could be justice in the legal system sense (to follow the legal systems
and values) or justice from the perspective of a decent human being
o Conflicting duties: Does the Lawyer has a bigger duty to the court (legal system) or to the client
(human being justice) (suggested by Pepper 1986 as he emphasized on amoral role re client’s
interests)
o Lawyers as moral agents?  Pepper offers the amoral ethical/professional role of a lawyer
 Justification for the role: first class citizenship model; a professional is to subordinate his
interests to that of his clients (pg615)
 The quality of service is untestable as the service rendered is based upon specialized
knowledge/ability – the individual-client needs the service but is unable to evaluate it and
thus, individual is vulnerable to the professional
 From this, the professional is able to wield significant economic power for the service
frequently needed by individuals
 the profession is largely self-regulated ie. policing professional activities and the ethics the
professional may prescribe
 you can see a quid pro quo relationship (pg616)
 3 premises/steps in first class citizenship model
 1st is law is a public good available to all, created by the collectivity to be generally
available for private use
 2nd premise is societal commitment to principle of individual autonomy  often
preferred over “right” or “good” conduct and thus, may oppose the public collective
decisions (pg617)
 3rd step is autonomy is often dependent upon one’s access to the law which in reality is
available through a lawyer
 This is where it emerges the concept of a first class citizenship as there is frequent
dependent upon a lawyer’s assistance for the client to maximize his/her meaningful
autonomy
 Access to the law = access to the lawyer’s assistance
 Therefore, it is our (as lawyers) moral responsibility [bottom pg617] – the lawyers
become the moral arbiters. So, this puts our autonomy ahead of the “citizens” (aka
clients)
  If law is a public good and access to it increases autonomy, then equality of access (to
lawyers) is important. Therefore, in this sense a client’s conscience should be superior to
the lawyer’s (pg618)
 And lawyer’s backstop (knowledge) of legality becomes an issue here because it
conflicts with lawyer’s morality
 Eg. making illegal things moral OR the lesser legally sophisticated a lawyer is, the limited
access to law or if there is access that will subject the lawyer’s use of the law to the
moral judgement and veto of the lawyer – the constant fight between legality v morality
(pg618-619)
 Criticisms of amoral role: legal realism – Holme’s image of the views of a “bad man”, “who
cares only for the material consequences” – he circumvents the law and find means to escape
responsibility (pg625)
 Suggest that lawyers treating the law as something malleable as we are able to lose our
morality
 breaking the law is a justifiable business more often than not (esp in contract cases,
than criminal) – it could be cheaper to breach a law and potentially getting caught is
actually a lesser risk to my compliance?  eg. breach of contract is not criminal. In fact
fulfillment of contractual obligations is not forced on a party, a client who does so will
be well educated by the competent lawyer as to the “cost” of their breach, ie. the cost
of “damages”
 The [legal] cost [of damages] always benefits/exceeds the non-compliance to the law ie.
breaching contract
 Tug of war between social cost and cost for non-compliance
 Pg626: Firstly, the “amoral” role is seen as the lawyer has to act as “amoral technician”
who serves rather than judges the client
 Secondly, the law itself, as presented by the lawyer, is also not a source of moral limits
when serving the client – instead the law can technically be manipulated by the lawyer
 Lastly, “the law” as a manipulative source provides only a moral guide as there is no
clear line, no boundary, but a series of possibilities
 Notwithstanding the amoral role argument, because it means the law itself combines
with lawyer’s morality
 Thus, with the combination of the legal realism understanding of the law and the amoral
role of the lawyer, there is no moral input or constraint in the present model of a
lawyer-client relationship
 Therefore, making the lawyers always engaging with “creating compliance” (lawyer’s
justifications for non-compliance)
 which is why we have rules/regulations for lawyers’ conducts (and clients’ activities)
which appear quite legislative-like but is still open to interpretation [back to Sem 4/5
materials]
 solution to “bad man’s” dilemma: to have a “moral dialogue” – as a lawyer it would be
sensible to engage the client with moral dialogue because it retains the autonomy of a client
but the client’s decision is then informed by the lawyer’s moral judgement (pg630)
 therefore, there is no complete denial of lawyer’s moral agency as their moral agency is
represented in a moral dialogue
 (pg631) but whose decision is it ultimately in the moral dialogue?  the client’s decision
will always trump the lawyer’s – [this shows US lean towards a more client-centric
system, whilst Aust is more focused on duty to the courts for lawyers]
 2 limits to the moral dialogue, while it is good for legal practice to engage with the
moral ethic but this kind of dialogue requires time and hence, could be expensive/costly
to a client as time is the lawyer’s stock in trade
  Pg632: Second limitation is the client’s receptivity to the dialogue may vary, usually a
criminal defendant may be less prone to the dialogue than the corporate officer
 should lawyers extend executing positive actions beyond the limits of their retainer? =
as Pepper suggests the ultimate autonomous of the client and added with the amoral
role of the lawyer, the lawyer would not need to act beyond the limits of their retainer –
lawyer’s service is provided upon payment, a service to serve the client’s interests.
Unless a client asks for more time, such as to engage in a more comprehensive moral
dialogue, than a lawyer would not have to worry of acting beyond the scope of their
retainer  lawyer’s goal should be to help gain client the access to the law and hence,
ensures the autonomy of the client
 OR should lawyers extend executing positive actions beyond the limits of their retainer?
= lawyers should go beyond the scope of the retainer, but within reasonable limit in
order to prevent lawyers from exploiting their “legal services” aka “assistance to access
the law”, the limit may be to advice the client the need to consult another or an
independent party in order for client to make well-informed decisions, rather than the
lawyer him/herself offering own opinion that is beyond the scope of their retainer  to
balance between respecting the law and facilitating a moral dialogue, which ultimately
preserves or provide the client access to autonomy
 pg632: conscientious objection: is the alternative in situation, where despite having the moral
dialogue where one recognizes the moral and legal validity, but choose not to follow it –
absolute value of autonomy prevails
 conscientious objection is only in extreme cases, more often is the amoral role where
lawyer’s autonomy is more restrained
 Luban’s critique of Pepper: normal morality approach he prefers suggests the contrary to
the first-class citizenship model, as normal morality would condemn callous behaviour
(pg633)
 Big difference between Pepper and Luban’s perspectives: what they think is the “moral
dialogue”
 Pepper: moral dialogue as an exception, in most instances it is the amoral role we engage in
 Luban: by definition due to his skepticism, the expectation on moral dialogue is rather more
routined – because you (as a lawyer) will routinely give advice that steps beyond the legal

o Luban (1987)
 Critiques of Pepper’s approach: 1) against the defence of the amoral role 2) disagree that
economic inequality does not vitiate/weaken the defence of amoral role [instead, because
inequality is compounded; when there is inequality to access to a lawyer, there is a second
inequality of what law that particular lawyer will allow the client access to]
 Somewhat agree with Pepper in relation to: 3) the adversary system does need to justify the
amoral role 4) there is a “problem of realism” 5) agree with the few possible solutions to the
problem, but with few minor qualifications
 P638: Disagreeing with the amoral role – Pepper seems to be in the perspective that the
lawyer is a good person trying to help gain access to the law, despite the fact that “some
things legally right are not morally right” per Abraham Lincoln  so in a way, it seems that
Pepper assumes morality is already in the law. Pepper concludes that what the lawyer does
is actually a social good
 P639: Although Pepper is right about increasing autonomy often is morally good, but the
exercise of autonomy could also be an immoral action (Pepper ignores this)
 P640: Pepper seems to simplify the distinction between legal and illegal conduct correspond
to the distinction between conduct on moral grounds and morally intolerable conduct
  Pg641: We should delegate to the individual lawyer the authority for case-by-case
legislation and policing when helping out a client, including to interpose themselves and
their moral concerns
 Whereas Pepper would disagree as this would undermine the first-class citizenship model,
and instead the lawyer should abide by the formal approach and discussions
 Luban would argue otherwise, as human beings we cannot ignore the informal social
pressure that keep us in check and thus, we must recognize that the law cannot prescribe all
intolerable (immoral) conduct
 Thus, the lawyer should play a (somewhat additional) to bring any social pressure and
morality discussion to the client’s attention
 Pg642: Luban suggests it is “good” to help client realize his true autonomy than to abide by
the immoral actions the client proposes.
 Pg643: essentially, no imposition of moral values could really undermine one’s autonomy 
a lawyer should not withhold their moral values
 should lawyers extend executing positive actions beyond the limits of their retainer? = with
reference to Luban, we can’t assume the parallels between legality and morality, a lawyer
should not rely on the professional amoral role as prescribed by Pepper, but instead a
lawyer may be required to act beyond the limits of their retainer especially if there may be
risk of immoral conduct, the lawyer should at least not withhold their perspectives as it is
unlikely that limited impositions by a lawyer shall undermine one’s autonomy. The
individual client’s autonomy is still preserved as the client have plenty other opportunities
for free decision making as life of the human being is largely autonomous.
 Pg643-644 Disagrees that Pepper believes economic inequality does not affect the defence
of the amoral role – but Luban things, there is compounded inequality: not only that there
is inequality to access to a lawyer, there is a second inequality of what law that particular
lawyer will allow the client access to
 Pg645: but amoral lawyers can be good as it is better than the adversary-system based role
 As the adversarial culture seems to influence the decision to act morally or not

o MacIntyre (1999) General issue on problematic relationship between social structure and morality
 Our moral judgement is affected by our social situations (which should not ignore these social
pressures)
 Moral agency (pg312) = ‘to be a moral agent is to be justifiably be held responsible for one’s
actions in three respects...’  for their intentional actions, the incidental aspects of those
actions that they should have been aware of, and for at least some of the reasonably predictable
effects of their actions
 Questions the foreseeability of morality  morality should prevail over simply executing our
legal services (pg313)
 Moral agent’s responsibility include to be responsible for any failure to act in providing the best
standards available
 Pg314: it is crucial for a moral agent to understand themselves as a moral agent and that it is
required of them exercise the powers of a moral agent in everyday practice
 Pg315: Firstly, to understand oneself through understanding your own individuality
 Secondly, to understand self as a practically rational individual and to be confident about it
in order to be able to make critical judgements about social standards when they arrive
 Thirdly, is to understand themselves as being accountable, not only for their usual roles but
for their rationales (pg316)
 Ultimately, to be a moral agent requires one to have practical thinking, to extend one’s
resources by opening up theoretical questions (pg318) – quite the opposite to Pepper’s
amoral role
  should lawyers extend executing positive actions beyond the limits of their retainer? = yes,
because a lawyer also holds the role of a moral agent and that is something inherent in the
social structure. But Luban and MacIntyre may provide an overestimation to the moral role
in a lawyer, which give rise to plausible undermining the core function of the profession
(providing legal services, not providing moral guidance)

7. ADMISSION TO PRACTICE AND DISCIPLINING LAWYERS

Who should be allowed to practice law? How should lawyers be regulated?

Previous class we see the lawyer is above all an officer of the court. This means that the lawyer must promote
the client’s interests, but only in ways that are consistent with the lawyer’s duty to uphold the administration of
justice.

As we will see, many of the rules governing civil procedure rely on lawyers adhering to their official role and not
misusing or abusing their position. But how can we ensure that lawyers adhere to this role?
One way to ensure that lawyers fulfil their proper role is to control who can be admitted to the legal profession;
so that only those committed to the administration of justice are allowed to practice law. Assuming that such
controls are deemed worthwhile, what factors should be considered in determining admission?

The regime governing admission to practice is conceived as a mechanism that serves to exclude people who are
deemed insufficiently fit and proper to discharge the practice of law.
The requirement that a lawyer be a fit and proper person is not settled once-and-for-all, at the time of
admission. Rather, it is an ongoing requirement, meaning that practicing lawyers can be excluded from the
profession, or otherwise disciplined, if they fall short of professional standards

Topics
- Admission to practice
- Lawyer discipline and ongoing compliance
- Law Institute of Victoria, Ongoing Disclosure Obligations: http://lsbc.vic.gov.au/?page_id=210
- Solicitors’ Conduct Rules 2015, Rule 5
- LPUL Part 3 – Admissions, Practising Certificates and Registration Certificates

Required Readings
- Legal Profession Uniform Admission Rules 2015:
https://www.legislation.nsw.gove.au/#/view/regulation/2015/240
o Legal Profession Uniform Law in NSW and Vic
 Pg790: Complaint of a lawyer’s conduct can be either related to a consumer matter or a
disciplinary matter or both
 Consumer matter re provision of legal services, eg. dispute over legal costs
 Disciplinary matter looks into unsatisfactory professional conduct or professional misconduct
 Commissioner may give priority to resolving the consumer matter and if necessary separate the
complaint matters (separate consumer from disciplinary matter)
 Commissioner must take preliminary assessment and conduct an audit
- G E Dal Pont, Lawyers’ Professional Responsibility (6th ed 2016) [23.85]-[23.95], [24.55]-[24.85]
 G E Dal Pont (2016):
o Professional misconduct in common law: disgraceful/dishonorable act – the standard of conduct is
established from peer judgement  the implications of peer-set standards (Pg762):
 Likely to have a defence to any charge of professional misconduct
 High peer pressure from “reputable and competent members of the profession” eg. if they
engage in such conducts than it cannot be a misconduct
  Excludes identifying “mere negligence” as a misconduct
 It is not confined to behaviour in a lawyer’s personal life (pg763)
 Only the alleged lawyer of misconduct must be personally implicated and liable for it – the other
members of the profession are not liable in the disciplinary sense
o Misconduct under Statute
 Various definitions of misconduct in the legal profession legislation – neither exhaustive nor
intended to restrict the application of the term at common law
 In legislation, it aims to provide a legislative direction
o Interpreted according to the gravity of misconduct and how it ultimately influence both
the forum in which the matter is pursued and severity of disciplinary sanction
 Pg764: Core uniform provisions distinguishes “professional misconduct” and “unsatisfactory
professional conduct”
 Unsatisfactory professional conduct is not confined to conducts that serve the clients. In fact,
the conduct may occur “in connection with the practice of law” even if not connected with the
provision of legal services
 “professional misconduct” under statute includes unsatisfactory professional conduct where
o it involves a substantial or consistent failure to reach a reasonable standard of
competence/diligence
o and conduct that justify a lawyer is not a fit and proper person for the legal practice
(pg765)
o thus, “mere negligence” will not suffice professional misconduct
 legislation adds that there are conducts where there it is not necessary to choose between the
definitions of “unsatisfactory professional conduct” or “professional misconduct”
o contravention of legal profession legislation/rules/regulations
o conviction for a serious offence, tax offence or dishonesty related
o becoming insolvent under administration
o disqualified from managing or being involved in management of any corporation per
Corporation Act 2001 (Cth)
o failing to comply with an order of a professional or disciplinary body
o failing to comply with compensation order
 Disciplinary order depends on the seriousness/gravity of misconduct, which in turn is
determined by the potential impact of conduct on protection of the public and reputation of the
profession
 should lawyers extend executing positive actions beyond the limits of their retainer? = despite
the diverse regulatory modes for lawyers’ conducts, particularly through common law and
statutes, these regulations (aka disciplinary procedures) are limited to providing provisions for
the scope of a lawyer’s retainer, specifically on determining the appropriateness of lawyer
imposing their perspectives beyond the legal framework unless the lawyer’s conduct involves
substantial or consistent failure to maintain the reasonable standard of competence
o “substantial” and “consistent” imposes a high threshold for an inquiry into lawyer’s
misconduct

- Michael McGarcie,’Proactive regulation of the legal profession in Victoria’ (Overview, Victorian Legal Service
Board and Commissioner, 2 September 2016)
https://www.coloradosupremecourt.com/PDF/PMBR/Proactive%20Regulation%20of%20the%20Legal%20Pr
ofession%20in%20Victoria%20Australia.pdf
o McGarcie 2016: the policies today are moving to a process which dictates inspections based on a
practitioner or legal practice’s demographics, complaints history, any previous trust issues, past
failure to respond to requests from regulator

- Dal Pont, ‘Unethical or incompetent – does it matter?’ Law Institute of Victoria (2018)
 o Dal Pont, ‘Unethical or incompetent (2018):
 professional misconduct does not extend to mere negligence
o both in common law + statute, provide definition of professional misconduct to involve
“disgraceful or dishonorable” conduct
 statutory misconduct definitions do encompass matters of incompetence
 there is a qualitative distinction between “unethical” and “incompetent” conduct
o ethics goes to a person’s character
o competence goes to the lawyer’s practice

- Dal Pont, ‘Admitting mental illness’, Law Institute Victoria (2017)

- Re B [1981] 2 NSWLR 372 (extracts)
o Re B [1981] 2 NSWLR 372 (extracts)
 Despite the absence of certification by the Barristers Admission Board on a person satisfied as of
“good dame and character” approving him/her fit and proper person to be a barrister, the
Supreme Court has an overriding and independent power conferred on it to admit a person to
be a barrister in an appropriate case
 Whatever procedural or administrative steps are prescribed in relation to the admission of
barristers, the ultimate jurisdiction in relation to admission, disbarment and readmission resides
without jurisdiction in Supreme Court
 Moffit P observes that where persons apply for admission to practice as barristers while lacking
an intention on admission to practice, the Court should consider deferring admission until
satisfied the applicant will become a practicing member of the Bar

- Victorian Legal Admissions Board, Disclosure Guidelines for Applicants for Admission to the Legal Profession
o Victoria Legal Admissions Board, Disclosure Guidelines for Applicants for Admission to the Legal
Profession
 The Guidelines emphasize on each lawyer to disclose any matter that could influence their
“currently of good fame and character” and “a fit and proper person”; disclosing in an honest
and candid manner
 What are the principles we are considering when assessing the scenarios of these three
individuals (above)?
o Should the market have a say on who can or cannot be a lawyer through law
admissions
o How do we control the kinds of people that are admitted to the legal profession  to
make sure they are morally ethical
o Governing power under LPUL s17(2) (and LRA)
o Uniform Admission Rules rule 10(1) VLAB – a non-exhaustive list
o Statutory declaration: a declaration to your own good character, a forum allowing you to
disclose things that are not in your interest to the admission board
o Eventually, there is nothing that can bar you to be admitted in the profession
o We see a conflict whether one should be judged based on their character or public
perception  UAR rule 10(1) “of good fame and character”
 Importance of disclosing your past/history
o Disclosing one’s history influence how you define yourself now – indicator of “are you
currently fit and proper”  to identify one’s “self-awareness” or “remorse”
o The people who get knock back are people who don’t admit to their wrongdoings
 Critique: A lot of trust imposed upon the lawyers to be honest in making full disclosure of their
character throughout their legal practice – thus, no clear guarantee all lawyers do so as the
guideline suggests
- Linda Haller and Francesca Bartlett, ‘Views from inside: A comparison of admission process in New South
Wales and Victoria before and after the “uniform law” (2016) 42 Monash University Law Review 109, 109-37
– especially pg124
 to put students on the right path by having them acknowledge their mistakes and encouraging
them to show remorse (pg128)
o in reality, the number of people being denied admission is still very small

Seminar Notes
- 1st Consumer complaint infrastructure which deals with services
- 2nd As a lawyer, you can be prosecuted for breaches of ethical rules
 If there is a decision to prosecute by the authority (VSC?) then the case will go before VCAT

Seminar Exercise – 3 scenarios: should any of this individual be admitted to the legal admissions?
Cassie – Herron Scott Law (in video)
- A lawyer who deliberately act against the laws
Miles
- A new lawyer who committed a violent act but admit his guilt and follow through with his consequences 
he still shows his respects the law
Bianca
- A new lawyer working in a bad firm doing something that does not seem morally right or legal – had
depression – without going through therapy or consulting with her boss, continued to work at the firm and
hasn’t been doing sufficient good work

What are the principles we are considering when assessing the scenarios of these three individuals (above)?
- Should the market have a say on who can or cannot be a lawyer  through law admissions
 How do we control the kinds of people that are admitted to the legal profession  to make sure they
are morally ethical
o Governing power under LPUL s17(2) (and LRA)
o Uniform Admission Rules rule 10(1) VLAB – a non-exhaustive list
o Statutory declaration: a declaration to your own good character, a forum allowing you to disclose
things that are not in your interest to the admission board
o Eventually, there is nothing that can bar you to be admitted in the profession
o We see a conflict whether one should be judged based on their character or public perception 
UAR rule 10(1) “of good fame and character”
 Importance of disclosing your past/history
o Disclosing one’s history influence how you define yourself now – indicator of “are you currently fit
and proper”  to identify one’s “self-awareness” or “remorse”
 The people who get knock back are people who don’t admit to their wrongdoings

What is the proper function of the Board?

- Haller & Bartlett 2016 pg128: to put students on the right path by having them acknowledge their mistakes
and encouraging them to show remorse  focus on engaging in full honest disclosure

Note! in reality, the number of people being denied admission is still very small

8. THE LAWYER-CLIENT RELATIONSHIP IDENTIFYING THE CLIENT AND UNDERSTANDING WHAT DUTIES
ARE OWED TO THEM
As lawyers have a paramount duty to the administration of justice. Lawyers, of course, also have duties to their
client, though these duties are qualified by their duty to the administration of justice.
The lawyer-client relationship is established through the “retainer”, which is the term used to describe the
contract for the provision of legal services. The retainer is central to many aspects of the lawyer-client
relationship. Critically, the retainer identifies the client and also the scope of legal services the lawyer is
contractually bound to perform. Generally, a lawyer will owe no duty of care to advise clients on matters outside
the scope of the retainer.

Topics
• The retainer
o Identifying the client
o The scope of the retainer

• Introduction to the duties to the client o Duty to be competent

o Duty of loyalty and trust
o Duty of confidence
o Dealing with client money
- Legal Profession Uniform General Rules 2015, Part 4.2 (on trust money) o See, the Victorian Legal Services
Board website for information on Client Money: www.lsbc.vic.gov.au/?page_id=203
 Solicitors’ Conduct Rules 2015 – rules 4, 7, 8, 13
 Dominic v Riz [2009] NSWCA 216 (extracts)

Required Readings
- G E Dal Pont, (2016)
 What were the other means apart from ‘just causes’ of terminating a retainer  to support widening
the scope of retainer
 Pg103-104: just causes for a lawyer not complete work and thus, terminating retainer
 Require the lawyer to commit a breach of professional rules such as when lawyer is in a situation of
conflict of interests between client’s and own interest or lawyer’s duties to others OR when renders it
likely for lawyer to be called as a witness on a material question of fact
 Pg165-166: disclosure of info relevant to the representation – scope of the duty of disclosure and
prospects for liability
 There is prospect of tortious liability when failure to disclose deprives a client of knowledge that impacts
on the client’s decision-making – per Spector v Ageda
 Failure to make full disclosure, even if it does not generate liability in tort, but may manifest itself in
client dissatisfaction and potential complaint
o This duty is not imposed on the firm ie. partners and staff, if they have no involvement with
the matter
o Pg167: counterargument would be the knowledge of one partner of a firm is imputed to
fellow partners which may lead to client-client conflicts environment
 Policy frameworks have not been suggesting the need for disclosure of information
such as conducting a “conflict check” or “knowledge check” due to its impracticality
 should lawyers extend executing positive actions beyond the limits of their retainer if he/she learns of
client will be at risk? = as there are expressed professional rules (Vic r13.1) in widespread Australia that
provide the basis for a lawyer being able to terminate the retainer without completing the work
required by it, the scope of the retainer should not be applied in a confined manner that preclude
lawyers from providing advice that may only be an implication by the retainer ie. advice would be
significant to client’s interest being endangered or at risk
- Dal Pont (2019) – the lawyer by implication: being clear about client identity is critical in fulfilling ethical
responsibilities
 Contract law forms foundation for lawyer-client relationship
 This relationship may constitute implications, independent of lawyer’s intention  “implied retainer”
where lawyer has weighty tortious and fiduciary duties, apart from the contractual obligations within
the legal provision
 Pegrum v Fargarly: lawyer has an implied duty to disclose any relevant knowledge to maintain its
duty of care to client – implied retainer
 Lawyers as risk managers, must also not ignore the ethical dimension in its service – ie. by making
ethical judgement
o G E Dal Pont, Lawyers’ Professional Responsibility (2016)
 Pg114: Nature of lawyer’s duties to client are essentially to treat clients fairly and in good faith,
giving due regard to clients’ position of dependence [reliance]
 From this view, lawyers should give clear and timely advice to assist client understand relevant legal
issues and make informed decisions
 Communications with clients should be in a form/manner consistent with the client’s knowledge and
sophistication
 Act within their power and the law to protect/foster client interests
 Pg116: Duty to be competent – legal competence is measured by the extent to which an attorney is
not only knowledgeable about fields of law he/she practices but expected to identify issues beyond
his/her competence relevant to the matter undertaken, bringing these to the client’s attention as
well as to properly prepares and carries through the matter
 Failure to do so results in legal incompetence
 should lawyers extend executing positive actions beyond the limits of their retainer if he/she
learns of client will be at risk? = although in modern practice, retainer constitutes a contractual
document with expressed provisions of the lawyer’s roles and responsibilities to clients, it is
inevitable to ignore the tortious and fiduciary duties, especially as clients are placed in a vulnerable
position being dependent on the lawyer’s service to assist in their legal issues and for them to make
informed decisions to foster/protect their interest. The measure of legal competence of a lawyer
does not only rely on the legal professional expertise and knowledge one lawyer has, but a lawyer is
also expected to identify issues beyond his/her competence relevant to the matter undertaken – as
we acknowledge the reality of issues faced by clients are not necessarily direct and apparent to
client. However, a lawyer may not be expected to provide solution to non-legal issue, but lawyer’s
duty to be legally competent requires him/her to bring these issues to the client’s attention
 Pg 120: fiduciary duties centers around loyalty
 HC in Breen v Williams says it should not impose prescriptive/positive legal duties when representing
the client – strict scope of retainer
 Lawyers as fiduciaries is enabled through the retainer  to affect client’s legal status with help of
lawyer’s role as officer of the court and client’s dependence on lawyer
o This may be perceived as the court imposing onerous duties on the lawyers or contrarily, a
way of minimizing the “agency costs” for clients as they can rely on lawyers having greater
information and expertise [than clients] are demonstrated through the lawyer’s fiduciary
duties
 Pg121 fiduciary duties in lawyer-client relationship exist to ensure lawyer is precluded from being in a
position/situation involving conflict between personal interest and client’s interest, and to refrain a
lawyer from using the lawyer-client relationship to benefit self, apart from that profit gained from a
reasonable professional fee
o The stricter the responsibility of lawyer to act on their fiduciary duties, the more likely
lawyers will deter from undermining client loyalty
o Breach of fiduciary duty cannot rely on defence that the client may have benefited from
the breach or it appeals to the “commercial reality”
 Breach constitutes a professional misconduct
 Pg122: client may consent or authorize lawyer to a conflict that would otherwise substantiate a fiduciary
breach on the basis the client decided this upon a full understanding of the nature and implications of
the conflict as the lawyer makes a full disclosure of the conflict
 should lawyers extend executing positive/prescriptive actions beyond the limits of their retainer if
he/she learns of client will be at risk? = HC in Breen v Williams recognizes the duty to protect client’s
interest as there is an implied fiduciary duty translated to the lawyer-client relationship. However,
implied duties to the client by the retainer should not impose prescriptive (positive) legal duties to act in
the client’s interests, but instead the retainer may impose proscriptive (negative) duties as the lawyer
must balance between his/her duty to the court and duty to the client via the retainer. Imposing
prescriptive duties would only lead to encroaching upon equity and displacing the lawyer’s role under
the contract (retainer) or tort law – keeping a strict scope of retainer
 Pg123: duties of confidence
 Confidentiality: a duty to maintain inviolation of client’s confidences
o This is implied term in the retainer and in equity which recognizes the doctrine of
preserving client’s confidentiality
o Provides a main justification for lawyer to be withholding from disclosure as a lawyer is
restrained from acting against a former client
 Undue influence: to rectify abuses of relationship by putting aside any additional benefits, that are not
relevant to the reasonable professional fee because it would preclude the exercise of free judgement
based upon complete information
 Pg150: relationship between contractual and tortious liability
 Duties of skill and care are implied in the contract of retainer
o Modern authority endorses a tortious duty of care may be contained in the “express of
implied terms of the [retainer]”
o The law of tort has not gone so far as to supersede the law of contract
o HC in Astley v Austrust preferred the finding of a tortious liability over contractual liability
against a lawyer
 According to the court, both causes of action remain
 The mere fact a contractual duty to take reasonable care is implied in law does not
restrict reliance to solely a tortious cause of action
o Retainer plays a crucial role in substantiating the existence of the relationship that has
given rise to tortious duty of care
 General rule: lawyer is not liable in tort in respect of events outside the scope of the
retainer
 Pg151: lawyer’s standard of care is qualified by barristerial immunity which protects
lawyers from liability for negligence as a result of their duty “in court” ie. conducting
litigation
 There are professional indemnity insurance and professional standards regime that
prescribe caps (covers) on lawyer liability
 Pg155 Scope of the duty of care via the retainer
 Scope of duty of care is confined by the retainer as there is a de facto (actual) disclaimer on that duty
includes advising outside its scope
 A lawyer who wishes to restrict the scope of retainer, especially where the client expects the lawyer to
advise on a broader basis, can make a full and clear disclosure of the limits of the duty the lawyer is
undertaking, and to advise the client to secure/gain advice from another person outside those limits
[of the retainer]
 This disclosure and advice must be communication “in simple, concise and precise language”.
Ambiguity in this communication is likely resolved against the lawyer
o But the court (per Minkin v Landsberg 2016) may not easily construe a retainer to
encompass a much broader obligation merely because its terms do not preclude the latter
[the broader obligation]. You do not need an expressed provision to say retainer should not
 encompass broader obligation – therefore, the issue of ambiguity won’t even be
considered in the court
 should lawyers extend executing positive/prescriptive actions beyond the limits of their retainer if
he/she learns of client will be at risk? = A retainer may give rise to tortious duty of care, but this
standard duty of care only arises within the limits of the retainer that includes barristerial immunity. The
general rule establishes a lawyer cannot be liable for breaching a duty of care outside the scope of the
retainer. Therefore, this provides the implication for the lawyer acting beyond the limits of the retainer
only to the extent the lawyer makes a full and clear disclosure, in clear and simple language, of the limits
of retainer and advise client to secure advice from another person not bound by the limits of the
lawyer’s retainer.
 Pg 164: Where a transaction/dealing is improvident (thoughtless/wasteful)
 The general principle is if the client is fully informed of the risks on a transaction and the client does not
lack capacity, the lawyer has fulfilled her/his duty – make sure the client truly understands
 Advice on transaction must be given in a private meeting, fully documented in writing and signed by the
client
 Pg165: lawyer with serious reservations/doubts as to client’s understanding or free will should decline
to act on the transaction, or the lawyer could face the prospect of liability in negligence if the
transaction was pursued and a third party suffers loss
 Dangers for a lawyer are heightened when a lawyer acts for all the parties in the transaction  conflict
of interests  lawyer will not be able to fully advice one party of its inherent risks per Cockburn v GIO
Finance
 should lawyers extend executing positive actions beyond the limits of their retainer if he/she learns of
client will be at risk? = yes, only to the extent of bringing the matter of risks and interest being
endangered to client’s attention in a clear manner so the client may truly understand and able to act on
their free will. But if a lawyer has serious reservations as to client’s understanding or free will, he/she
should refuse to act on the transaction because it may not only lead to potential negligence claim made
against the lawyer but also an explicit contravention of the retainer ie. providing a financial, non-legal
advice
 Pg169 Can DOC (lawyer’s tortious duty) include giving financial advice?
 General principle: no duty to provide financial advice
o Courts will not assume financial advice is within the scope of a retainer due to
 The issue of competence and the need for licensing to assess financial risk or proffer
financial advice
o A person who does not carry on a business of providing financial services but does
otherwise constitutes a breach of Corporations Act 2010 (Cth) s1311(1)  an offence
o Added danger is endangering the confidence relationship in a lawyer-client relationship
o In fact, general rule: “it is for clients, not lawyers, to make commercial decisions” per
Brereton J in Lucantonio v Kleinert [2011]
 should lawyers extend executing positive actions beyond the limits of their retainer if he/she learns of
client will be at risk? = similar to previous point, but here there is a clearer rule specified to commercial
advice
 Pg173: circumstances where financial advice required due to nature of the client
 Where the client suffers a disadvantage that prevents a full appreciation of the financial drawbacks of
the transaction, the lawyer may need to advise as to the viability (the ability to profit/succeed), even if
lawyer is not specifically requested to do so
o Southern Law Society v Westbrook recognized this as a fiduciary nature of the relation
between a lawyer and client, particularly in this case for an aged client
 but nonetheless, there is still not affirmed perspective whether the courts would
impose upon lawyers’ legal duties to give unsolicited financial advice for clients that
lack business experience or aged
 o Citicorp Australia v O’Brien: NSWCA did not impose the lawyer with a duty to proffer
financial advice as the solicitor is retained to act for their skill in the law and should not
give opinions which they were not qualified to give – solicitor’s duty is found in the terms
of the retainer
o Allsop P in Dominic v Riz: a solicitor has fulfilled his/her retainer without negligence if
solicitor lacked knowledge of the underlying transaction, had not been retained to advice
on it and had advised clients to secure independent financial advice – only the third
proposition may constitute a conduct beyond the limits of the retainer, suggesting limited
means to go beyond the scope of the retainer
 These 2 cases does not suggest the wide approval of narrow application of the scope
of the retainer – NSWCA in Kowalczuk v Accom Finance offers a distinction between
lawyer’s obligation extended to explaining terms that would apply in particular
financial circumstances of the client AND a lawyer engaged to explain to a client, by
bringing the attention to the client how the document, according to its own terms,
is capable of operating (a more general understanding of document’s terms)  the
NSWCA did not reject the latter proposition
 the more improvident the transaction, and the more dependent the client on the
lawyer in relation to it, the more compelling the argument for the lawyer should seek
to shield the client from a real/foreseeable risk of economic loss or at least counsel
the client to secure independent financial advice, even though these may be
outside the strict bounds of the retainer
 Allsop P in Provident Capital v Papa: A retainer’s objective could be to give legal
advice on explaining the practical consequences of the legal obligations arising from
the relevant document. But if the assessment of the document cannot be without
financial or further financial advice/info, the solicitor may be obliged to counsel client
in strong terms about the risks in proceeding without further info/advice  a
solicitor would be held negligent in taking no step to bring home to the client about
the risks surrounding the transaction
 should lawyers extend executing positive actions beyond the limits of their retainer if he/she learns of
client will be at risk? = there is limited space for lawyer to act outside the strict bounds of the retainer,
the court decisions tend to agree that lawyer may fully disclose their concern to the client of any actual
or foreseeable risk to client’s interests and advice the client to secure independent financial advice
elsewhere. NSWCA in Kowalczuk v Accom Finance also added that a lawyer may provide explanation of
terms in a document in a way that is not applying to the client’s particular financial circumstances.
These are the reasonable steps lawyer can make to avoid from being sued for negligence.

Conclusion
 Basically, the reality of the legal practice suggests clients can influence or ask lawyers to extend their
legal competence through asking advice while framing them as “legal matters”. Lawyer’s response to
client’s issues and inquiries may not only raise issues of negligence but also other consequences such as
breaching duties in relation to fiduciary, legal competence, and confidence. These breaches can be
translated into the lawyer-client relationship as extending the scope of the retainer, whether by
expressed agreement or conduct. An emerging consensus among case laws have provided a limited
space in widening the scope of the retainer. Several court decisions have agreed lawyer advising client
to seek independent financial advice is an acceptable and reasonable conduct outside the strict bounds
of the retainer.

Seminar Notes
The Retainer
- What is it: a contract between a lawyer and client – has a binding effect
- Why does it matter:
 They will be generally as they’re usually reduced to writing, form a diversity of functions
o duties, obligations etc. are defined by the retainers
o tells us who is the client
 this is not always straightforward matter because there can be a conflict of interest issue that
emerges – eg. family members involved; corporate work; not political conflict of interest (this is
more of a positional conflict which has no regulation for)
 common challenge/issue:
 does my client has the ability to instruct me or to receive my legal advice?  raises issues of
legality v ethics
 capacity?  mental capacity – whether the purported client has the capacity to instruct?
o What is the purpose?
 Scope – specific (task or matter-based) general; continuing
 Based on express and implied terms (Dal Pont, 3.25-3.30)
 Implied terms like competent education, or implied retainer, or expressed retainer with
implied terms
 Scope may be extended by agreement or conduct
 Eg. clients can influence/ask us extending our legal competence through asking us legal
advice – not only a negligence issue but cost us other personal consequences

9. LAW AS A BUSINESS: COST DISCLOSURE

In earlier classes, we saw that lawyers are a special type of public official—an “officer of the court”—and
therefore have a paramount duty to the administration of justice. But what happens when the lawyer’s
commercial interest come into conflict with the lawyer’s duties to the client or to the administration of justice?

In the abstract, the demands of those duties will normally be fairly straightforward; in principle, then, lawyers
should have no difficulty fulfilling their proper function as officers of the court. However, although lawyers are
officers of the court, most lawyers are not insulated from commercial pressures in the way that judges are
insulated. Instead, the majority of lawyers work in private practice operating on a for-profit, user-pays,
competitive basis. Law is, usually, a business, and it would be surprising if commercial pressures did not
influence motivations, behaviour, and outcomes.

This seminar considers how the business models that govern law firms’ operations might influence the
motivations and behaviour of lawyers.

Do business imperatives always align with the imperatives of the administration of justice?

Do business imperatives always align with what is good for the client and what is good for society?

Topics
- The business of law
 Ethical pressures
 Cost disclosure obligations

Legal Profession Uniform Law, Part 4.3, Divisions 1-4

Readings
 Bagust 2019: the legal profession and the business of law have demonstrated an incline for
deprofessionalisation of legal profession as lawyers are caught up in a battle for ascendancy between
two discourses: Professionalism (where legitimacy for the profession rests on a social bargain to
exchange the status and privilege they receive from their intellectual and organisational domination of
their field for the ethical and altruistic services in areas of social concern) and Neoliberalism (driven by a
rationality that privileges the logic of the market where economic interests are favoured over the social
realities) pg27-28
 Neoliberalism discourse  threat to widen scope of retainer to include the counsel on financial
matters
o Pg32 Charles Derber’s Marxian Theory on Proletarianization of professional workers: argued that
the shifting status of professional workers from self-employment (autonomous professional) to
employee status parallel the proletarianization of 19th century craft workers
 The profitable professional markets attract more capital and because professionals depend
increasingly on technological advances and institutional resources
 Individual professionals who lacked the resources to maintain economic independence, turn to
the heteronomous management by large-scale corporate bureaucracies and thus, become their
subject – they experience a slow degradation of their status and rewards and they become de-
professionalised
 Pg33 Corporate legal practice as a profit-driven industry  shift of the market structure and
firm structure of the legal practice firms
 Firms value marketing pg38
 Lawyers are now being placed in a position where they must reform their professional
identity to fit the repertoire of skills perceived as necessary to market their firm’s wares
 Pg39-40 US research revealed lawyers are effectively dominated by their clients as they
enthusiastically attempt to maximize the interests of clients and rarely experience serious
disagreement with the broader implications of their client’s conduct
 Limited space for Pepper’s concept of moral dialogue and it may affect the execution of
retainer as merely formed as an agreement for formality and to identify legal fees
 Pg40 Current market conditions: lawyers are subordinating their professional autonomy by
deferring to their clients’ demands in the name of ‘service’
 Decline in lawyer’s duty to the court to administering justice
 Pg41-42 competitive nature of corporate legal practice today influences the demise of
traditional client loyalty as there is a lot less loyalty from clients to law firms. Clients may
change law firms they would consult with based on the specific area of expertise a firm
offers or the pricing fees attached to the legal service
 Pg43 client control of lawyers  when purchasing the legal services, the corporate client is
able to define their own needs and the manner in which they are met from the law firm.
They dictate the operational matters to a firm ie. location in which lawyers are to undertake
the work  a lot of commercial pressure on law firm + declining degree of professional
autonomy
 Reformation to the Corporate legal practice as a profession + impact on public interest and
lawyers’ values (pg45)
 Corporate lawyers’ functioning as agents of a power elite who perpetuate the structures of
domination and inequality which are essential to competitive capitalism, rather than as
autonomous professional workers
 Derber argued salaried professional workers’ integrity was being threatened by the
expropriation of their values or sense of purpose in the post-industrial workplace
 Pg46 Derber theorized two responses by professional workers to ideological
proletarianization
 1st ideological desensitization = the denial or separation of the ‘self’ from the ideological
context of one’s job; this manifests as disengagement from concern with the social uses
and ends of one’s work and a narrow preoccupation with questions of skill and
knowledge
 2nd ideological co-optation involves the recasting one’s goals and moral objectives to
make them consistent with organisational imperatives – common among lawyers for
 large corporations in situation where it might be considered ‘ethically challenging’
(pg46-47)
 Pg48: competitive workplace regime demonstrates there to be limited scope for lawyers,
esp junior lawyers, to exercise their professional autonomy by voicing disagreement with
broad implications of their client’s course of conduct – in order to survive in an intensely
competitive market
 Conclusion pg49
 Corporate law firms focus constantly on building their client list and the profit motive no
doubt functions to affect the professional autonomy of individual lawyers, ethical corporate
legal practice and ultimately the integrity of the legal profession itself
 Justice Kiefel disagrees with this new regime: describing that commerce does not have the
same standing, confidence and trust of the public that is held by the law as a profession
 Pg52 lawyers are losing control over goals and social purposes to which their work is put,
and instead find themselves under the control of their powerful and savvy corporate clients
- should lawyers extend executing positive actions beyond the limits of their retainer if he/she learns of
client will be at risk? = considering the modern regime of the legal practice that is becoming more
commercial-focused which demonstrates a range of new social concern for the profession – this would be in
support of non-extending the scope of the retainer as the commercial aspect to the law firm may only cause
more ambiguity to the scope of the retainer. Despite a financial risk being significantly apparent, a lawyer
should aim to act within the strict bounds of the retainer and suggest to client to consult an independent
party for financial advice. The hopes of supporting the notion of strict executing of the retainer is to
preserve and restore the integrity of the profession, instead of losing the autonomy of the profession to the
proletarianization

Differences between general-commercial services and professional-focus services

- (hyper) specialized
- Ethical standards and regulations
 Autonomy and independence – profitability is connected to “scale”
 Client control heightens
 Commodification of employees
o A triad relationship: lawyer-employee, client and lawyer’s boss

Scenario: Parker Law

Contingency fee is based on winnings – calculated as a percentage of what you will get (proportionality)
- Payment of lawyer’s professional charges is contingent on a successful outcome
- They have a disproportionate effect on legal claims – influencing clients to settle early
- And they also create an element of critical risk (legal risk?)

- The business model in the company give rise to a risk that the lawyers would not be acting in the client’s
best interests
 More focus on financial risk/interest > justice
- Conditional fee agreements
 Affects the time spent
 Task by lawyers
 Fixed fees for services (based on a particular calculation)
- Opportunity cost
 Spending not that much time on a low-value claim is potentially more beneficial for lawyers, so they can
focus more on high-value claims
- Risk: Legal risks v Financial risks upon client
 Depends on how the lawyer frames their advice
Scenario: Herron Scott Lawyers
- Q2: personal risk for a junior person like Cassie
- “policy matter” tends to refer to the ideal moral world the public hopes for

13. ABUSE OF PROCESS

How to ensure that the court’s coercive powers are not illegitimately weaponized?
In earlier classes, we saw that the court possesses coercive powers. Those powers exist in order to promote the
administration of justice, including the provision of a fair trial.
The court relies on its officers—including lawyers, as officers of the court—to ensure that these coercive
processes are not employed to illegitimately intimidate, embarrass, coerce or otherwise oppress. The law labels
any such abuse of power an ‘abuse of process’ —an infraction that is among the most serious a lawyer can
commit.
Topics
 Duty to the court
 Abuse of process

Seminar Notes
- If someone says they want to impose a threat to pressure another into abandoning their legal right?
 As a matter of public policy, should a person be permitted to use the threat of legal action solely to
pressure another into abandoning their legal rights?
o What circumstances where “depends” is acceptable?
o May depend on the prospects of merits if the case was brought to court ie. the case has no legal
merit
 Someone using the fact there is “no legal merit” as leverage  abuse of the process
 Rule of Law arguments become influential here
 Note: threat of “legal action” should be distinguished from threats of “financial pressure” and “violence”
o Financial pressure looks into the economic inequality
 Why we don’t see abuse of process cases much is due to financial privilege
- The case of legal threat (the anatomy of an abuse of process): White Industries (Qld) Pty Ltd v Flower &
Hart (A Firm) [1998] FCA 806
 The case is unusual in the amount of detail we have regarding the lawyers’ communications and
strategizing – normally this kind of information remains ‘behind closed doors’
o T/f it raises implications for policing abuses of process
 The claim [pg319 in SM]: White Industries sought an order that its costs be paid by Flower & Hart on an
indemnity basis on the grounds that the proceeding was
o (a) commenced and maintained by [Caboolture Park and Flower & Hart] in the belief that
Caboolture Park had no or substantially no prospects of success
o (b) commenced and maintained by Caboolture Park and Flower & Hart for an ulterior purpose
 The main issue: why is the claim pursuing Flower & Hart and not Cabolture Park?
 The background deal [pg321-322]
o Mr Herscu of HDC wants to build a mall at Caboolture Park’s property; the Whites were architecture
for HDC; Mr Meadows is lawyer from F&H
 It became clear there was going to be an overrun in business deal [pg323]
 There was a genuine concern as the business deal breaks down [pg324]
 Policy Issue becomes: if you don’t pay under the contract, what other grounds can you rely on for not
paying?
 o So Flower & Hart (law firm) is faced with a problem which was acknowledged in [325]: basically, they
have a powerful client (HDC) who doesn’t want to pay
 The initial legal advice [326]
 By 18th of December, there was a change in tune to the initial advice via a letter to HDC [327]
 In terms of duties that are come into question is duty of competence as you recognize the
substantial risk to your client and duty of independence – independent from the client and
everyone (ie. the court, other third parties) – because if you take the client’s views of
everything you are not exercising this duty
 The advice is used as a bargaining stance. So, in terms of our three categories of threat (legal
action/financial pressure/violence),
 This case lies within the threat of legal action – misusing the pressure of legal action
 Policy concern: Does this depart from the methodology/approach that we expect from the
officer of the court (ie. lawyer)?
 March 1988 – Opinion [340]
 What did making this claim do?
 Slowed down the recovery of money
 White Industries have the substantive claim under the contract as the plaintiff, but in
this case they are defending against a serious allegation of them by HDC
 Discrepancy of reasonings in this case: client with deep pocket who likes to litigate (Mr Herscu,
HDC)

ABUSE OF PROCESS stay of proceeding = suspension of proceeding

 Zuckerman P460: Apart from case management powers, the court has a wide discretionary power at
common law to prevent its processes from being abused
o P461: this power (to prevent abuse) than overlaps with (leads to exercising) the Court’s power is to
strike out and summarily dismiss proceedings for abuse of process
o Power comes from the (residual) inherent or implied jurisdiction – residual sources of powers,
which the court may draw upon as necessary whenever it is just or equitable to do so, in particular
to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice
between the parties and to secure a fair trial between them
o P462: The general response made by a court where it has found an abuse of process is to order a
stay of the proceedings (an exercise of its inherent jurisdiction)  seen in Coe v Commonwealth
(The Wiradjuri Claim)
 But where the court finds a satisfactory solution under the rules of court or legislation, they
won’t use this power (p464)
 The rules of court (civil procedure that is designed to promote fairness) states the principal forms of
relief for abuses of process are for the court to strike out pleadings or order summary judgement
 P463 the effect of after order for abuse of process:
o Brennan J explained it consists of purporting to obtain ‘an advantage or other benefit,
o to impose a burden or create a situation that is not reasonably related to a verdict that might be
returned or an order that might be made in the proceeding’.
 Its consequence to the proceeding: either is manifestly unfair to the other party or would bring the
system of administration of justice into disrepute
 P464: No clear legal definition for ‘abuse of process’
o [11.82 Zuckerman p463] citing Walton v Gardiner (1993) 177 CLR 378 at 393; Hunter v Chief
Constable of West Midlands [1982] AC 529 at 72:
= “a misuse of the court’s procedure which either is manifestly unfair to another party to litigation or
would bring the system of administration of justice into disrepute”
o p464: Batistatos v RTA (NSW) [2006] HCA 27: abuse of process cannot be restricted to ‘defined and
closed’ categories because notions of justice and injustice, as well as other considerations that bear
 on public confidence in the administration of justice, must reflect contemporary values and, as well,
take account of the circumstances of the case
o As the overriding objective has established norms of modern civil procedure, it ought to inform what
is considered to be an abuse of process.
 This is one of the reasons why the High Court in Batistatos found that the failure to take, as well
as the taking of, procedural steps which cause delay in the conduct of proceedings is capable of
constituting an abuse of process
 P464: Examples of abuse of process: there’s tendency to disrupt the proper administration of civil justice
 when trying to litigate an issue that has already been decided in a sample case
o But it is NOT an abuse of process to relitigate an interlocutory application where circumstances have
changed or fresh evidence becomes available UNLESS the interlocutory applications may be stayed
or struck out by court
o If a claim does not have merit, the best thing to do is to tell the clients – not to impose a threat
 Controlling abuse of process – in law and practice
o Mechanisms – to control substantive and procedural steps in the litigation
 Broad inherent (common law) or implied (by statute eg. Federal Court) jurisdiction to safeguard
its own processes. Power to suspend (stay) proceedings specifically is within the superior courts’
inherent jurisdiction – Zuckerman 14.25, 14.30
 Overlapping powers under specific rules of court
 Court refuse to accept claims or pleadings where they are frivolous, vexatious or an abuse of
process eg. Supreme Court Rules r.27.06
 General powers to strike out pleadings, or move to summary judgement
 Jurisdiction to award costs against lawyers, as in F&H; also, s29 CPA 2010
 These orders under s29 can be made on the court’s own motion as per Gibb v Gibb
 Case management – are abusive claims severable from meritorious claims? Can court address
breaches of overarching obligations that could be part of/amount to an abuse of process?
 Abuse of process – professional obligations
o Primacy of lawyer’s duty to the admin of justice
 Giamarelli v Wraith (1988) (‘paramount’ or ‘overriding’)
 A lawyer is obliged, as part of the duty to both the client and the court, to ‘press such rational
considerations as the evidence fairly gave rise’ Tuckiar v R (1934) 52 CLR 335, 346 (Dal Pont,
p553)
o Uniform Solicitor’s Conduct Rules  for the nature of lawyers’ duties to the court
 R21 responsible use of court process and privilege
 R 21.1 A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive
powers of a court
 r21.1.4 use of court process and privilege is not made principally in order to gain some collateral
advantage for the client or the solicitor or the instructing solicitor out of court.
 R 17 this rule demonstrates that the solicitor’s duty to the court is paramount/overriding
 R17.2 (connected to r4.1.4 and r3.1) there is no solicitor’s breach to simply act contrary to
client’s instructions
 R 5.1.1 (not r5.1.2 because this is too generic for this case) be prejudicial to, or diminish the
public confidence in, the administration of justice
 R 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails
to the extent of inconsistency with any other duty
 R 4.1.4 – overarching duties
o What prevent us using the court’s process appropriately?
 You can’t advance a claim if they don’t have evidential footing
 And your advice must be appropriate for advancement of a legal claim ie. case has merits
 If the case has no merits, you are outside the scope of the rules
o How should Flower & Hart manage their client ethically? What should have they done?
  Managing expectations: can we separate what the client wants from what is in the client’s
interests?
 Does this mitigate the problem of conflict between client ‘wants’ and your legal duties?
 What if the client will not follow your advice?
 Is there any (residual) conflict between your duty to the court and your duty to the client?
 How to breach the gap between what the rules tell me and the outcome that my client wants?
 Basic advice on merit of claim was good, but the problem was later about their technical
channel
o A client always goes to a lawyer for a “solution”, not necessarily for “advice”
 Lawyer needs to translate what client wants into ‘interests’ because what they want may be
fundamentally non-realistic, so lawyer has to engage client in a discussion on cost, relationships,
reputation, etc. other factors that help preserve client’s interests
 It may also, affect a lawyer’s ethics, torn between duty to court and duty to client
 What if a client won’t follow your advice after the discussion?
 A lawyer has the option to leave and refuse the client
o Flower & Hart: Hopeless case v Abuse of process?
 “the authorities do not support the proposition that simply instituting or maintaining a
proceeding on behalf of a client which has no or substantially no prospect of success will
invoke the jurisdiction…. (346)
 A party is entitled to have a practitioner act for him or her even in an unmeritorious case….
(346)
 … there must be something further added in the nature of acting unreasonably or for reasons
unconnected with success in the litigation or for an otherwise ulterior purpose resulting in an
abuse of process or in circumstances resulting in a serious dereliction of duty or serious
misconduct in promoting the cause of and the proper administration of justice. (347)
 Further the cases establish the proposition that it is a relevant serious dereliction of duty or
misconduct not to give reasonable or proper attention to the relevant law and facts in
circumstances where if such attention had been given it would have been apparent that there
were no worthwhile prospects of success.” (348)

STAY OF PROCEEDINGS
- Zuckerman P526 Court have wide-ranging power to stay proceedings
- = a stay brings proceedings to a halt (suspends proceedings), it can be indefinite or for a certain duration,
proceedings can only continue if a stay is ‘lifted’
 Different to an action that has been discontinued or dismissed
- This used to be court’s inherent jurisdiction but not it is pursuant to procedural rules or statutes
- Situations that trigger a stay:
 a matter which is the subject of a dispute resolution regime in a commercial agreement – the stay won’t
be lifted until a party complies with court order eg. pays a cost order
 stay as a consequential effect – stay as the execution of a judgement
- p529-30: the three categories a conduct amounting to an abuse would fall in – McHugh J in Rogers v R:
 (1) the court’s procedures are invoked for an illegitimate purpose;
 (2) the use of the court’s procedures is unjusti-ably oppressive to one of the parties; or
 (3) the use of the court’s procedures would bring the administration of justice into disrepute.
 Note: delay itself cannot amount to abuse, it needs an additional factor to make it an abuse of process
- Abuse of process fills the gap where rules run out
 P530: One of the principal aims of the abuse of process jurisdiction is to enable the court to deal with
problems to which the rules either provide unsatisfactory solutions, or altogether fail to address. The
power to prevent such misuse of procedure by way of a stay transcends the rules
  P532: failure to comply with rules or court orders doesn’t necessary give rise to abuse of process
because a claim brought after limitation period should be dismissed as defendant has a limitation
defence
 but where the claim is advanced for some ulterior motive, as where the plaintiff knows that the action is
statute-barred but advances it nonetheless in order to harass the defendant. Even where no such
motive exists and a claim was not subject to a time-bar, but the length of delay in bringing the
procedure was such that it would prevent there being a fair trial, a stay for an abuse of process would be
appropriate
- private and public dimensions of abuse of process
 p532: The abuse of process jurisdiction may be invoked to safeguard two different interests: the
interests of individual litigants who need to be protected from unfair practices, and the interests of the
public in the proper functioning of the administration of justice. It is because of the public dimension
that the court has discretion to act on its own motion to protect itself against abuse
- abuse resting on improper motive
 p533: It is an abuse of process to employ the court’s procedure for purposes other than the just
determination of disputes.
 However, it is to be expected that a litigant may use litigation for an ultimate desire that transcends the
pursuit of a cause of action in the proceedings. For example, a party suing in negligence for a personal
injury may well be seeking some vindication from the litigation in addition to an award of damages.
 Accordingly, a distinction must be drawn here between the use of a court procedure for an improper
purpose, and a litigant being motivated by some ultimate purpose outside the scope of the proceedings
o Only the former constitutes an abuse of process
o Where there is a law that provides for the conduct – usually not an abuse of process
 P534: An improper intention is not a necessary precondition for establishing abuse of process, but it is
a factor to be taken into account in arriving at the decision whether to allow a particular process
 P536: where there is a lack of proportionality between the plaintiff’s interests and the interests of the
court’s and other parties is a species of abuse of process remains unsettled law in Australia at present
 Abuse of process should not be used as a substitute for the procedure for summary judgment. Nor
should it be used to deny a plaintiff its rights merely because the amount of resources that may be
consumed by by allowing the claim to proceed will be significant
- Conduct of practitioners and abuse of process
 P537: Lawyers are afforded a privilege in relation to the conduct of proceedings which includes the
freedom of speech in an open court. A misuse of the privilege may bring the administration of justice
into disrepute
o Caboolture Park Shopping v White Industries
 The court has jurisdiction to deal with the conduct of lawyers, including by means of imposing an
adverse costs orders and making adverse findings as to the conduct of a lawyer. This is in addition to the
jurisdiction of the court to discipline its lawyers
o However, the court may not resolve the injustice left in proceedings as a result of a lawyer’s conduct
- Founding abuse on oppressive conduct and disruptive consequences
 P538: it is an abuse of process to advance factual allegations which are inconsistent with allegations
raised in previous proceedings, or to make repeated applications relating to the same issue without a
material change of the circumstances
o Such conduct wastes court resources
 P539: In Burbank Australia Pty Ltd v Luzinat, the court advanced two reasons justifying a stay of
proceedings.
o First, there is a risk that the two sets of proceedings may result in conflicting decisions.
o Secondly, there is a recognition that the defendant will already be ‘deeply involved’ in one set of
proceedings such that the commencement of a subsequent proceeding would amount to an undue
harassment.
 o In addition to these reasons, the multiplicity of proceedings is contrary to the overriding objective
 An abuse of process need not only be founded on oppressive conduct of the plaintiff.
o Batistatos v Roads and Traffic Authority of New South Wales provides a useful illustration. The
plaintiff sustained severe physical and mental disabilities as a result of a motor vehicle incident.
Some 40 years later, he brought proceedings against the local road authorities in negligence. Given
his disability, the actions were not subject to limitation periods. The proceedings were indefinitely
stayed for abuse of process. The High Court held that attention in this case must be directed to the
burdensome effect that the proceedings would have on the defendants as a result of the significant
lapse of time. A fair trial in those circumstances would be impossible. Unlike cases where an abuse
of process is founded on an improper motive, there was no requirement for the defendants here to
establish that there was some moral delinquency or deliberate misconduct by the plaintiff in the
timing of the action

Seminar Scenario: Jane’s Story

- Will should refuse the case because
 No clear cause of action – no merit  and so we should not put defendant to respond to litigation based
on such a speculative claim

14. Gender in Legal Profession

Part 2: Gender and the culture of legal practice

Earlier in the course, we considered the tensions that might arise between, on the one hand, the official
conception of the lawyer as an officer of the court, and, on the other hand, the commercial reality of the lawyer
as profit-seeking entrepreneur. Put differently, we were considering how commercial culture might generate
incentives that are in tension with lawyers’ ethical duties.
In this seminar, we consider a similar question, namely, whether, and, if so, in what ways, pernicious gendered
culture in legal practice might create pressures that are not only oppressive, but also in tension with lawyers’
ethical duties. The connection between gendered culture, on the one hand, and lawyers’ ethical duties, on the
other is, in some cases, subtle and not obvious —qualities that can make it all the more insidious.
- How the culture of law practice is gendered?
- How do gendered practices sit with profession’s ethos and ethical obligations?

Women’s Legal Service Victoria, ‘Starts With Us: Sexism and Gender Inequality in the Victorian Legal and
Justice Sector’ (2019)
- Existing research shows that legal and justice workplaces, like many sectors, are spaces where the drivers of
violence against women are marked. Evidence of the presence of gender inequality in leadership and
opportunity (direct/indirect discrimination)
- Disrespect towards women
 High incidence of workplace sexual harassment and bullying experienced by women (Victorian Equal
Opportunity and Human Rights Commission, 2012; Law Council of Australia, 2013; Morton, 2018;
Women Lawyers Association of New South Wales, 2019)
- Excusing violence against women
 Responses to the survey overwhelmingly indicate sexism and inequality in entrenched within legal and
justice settings
 Sexist attitudes contribute to workplace cultures in which sexism and inequality thrive
 Inadequate organisational and sector-wider responses to sexism and gender inequality effectively
condones, or at least minimizes, violence against women
- Gendered roles and stereotyping
 Men working in the legal profession are much more likely than women to be in leadership roles and are
more likely to be working at the Bar (Law Institute of Victoria and Victorian Women Lawyers, 2006;
Campbell and Charlesworth, 2011; Eastman, 2016; Thornton, 2016)
  Women barristers are less likely to be briefed, despite the introduction of equitable briefing policies.
 Women are more likely to be working part-time or engaged in caregiving responsibilities, however this is
associated with poorer career progression, inferior job quality and limited access to work (Campbell and
Charlesworth, 2011; Law Council of Australia, 2013; Thornton, 2016); discrimination on the basis of
gender, particularly in relation to parenting and caregiving (Victorian Equal Opportunity and Human
Rights Commission, 2012; Law Council of Australia, 2013; Friedman, 2017)

Rosemary Hunter, ‘(De-)Sexing the Woman Lawyer in Jackie Jones et al (eds), Gender, Sexualities and Law
(Routledge, 2011) 26–38
- there has been a significant gender shift in the Australian legal profession since the 1990s. Current stats on
(eg) the Vic legal profession reflect this: By 30 June 2018 registered female lawyers constituted 50.4% of the
legal profession in Victoria (LSB+C, Annual Report 2018, p.44). Women outnumber men for all age groups
below 50yrs, with the proportion increasing as we go down the age range, so in the largest (7151 lawyers)
age cohort of 31-40, women = 60.2%; in the 20-30 cohort they = 64%
- However in terms of leadership roles (defined as principal of firm) they remain substantially in the minority.
28% (6429) of all lawyers in Vic hold PCs as principals, but men occupy 66.53% of these roles. Age is a factor,
as a significant proportion of (male) principals are in the 51-70 brackets, but it is not the only factor – in the
41-50 bracket, where women constitute a small numerical majority (there is near gender parity), men still =
58.6% of principals; while in 31-40 bracket, men, whilst 39.8% of profession still = 50.8% of principals (where
total N = 1227). Note the figures do not distinguish sole principals from those in partnership. The Annual
AFR Law Partnership survey of 54 ‘leading’ law firms reported that in 2018 women constituted nearly 42% of
those being made up to partner (up from 33% in 2017), but that, on average, women still constituted only
1:4 partners in those firms
- With increasing diversity, growing awareness of a culture of discrimination, bullying and harassment in law
firms  note that there is r.42 ASCR, but these kind of conduct rules likely to be pretty ineffectual when it
comes to such a structural problem! Why?  policy issue
- Start With Us Research participant (353): One of the worst things is that in my workplace, and I think in the
law in general, there is a view that things are really good for women now. That makes it virtually impossible
to call out systemic and insidious gendered issues.

Patricia Easteal, Lorana Bartels and Emma Fitch, ‘Flexible Work Practices and Private Law Firm Culture: A
Complex Quagmire for Australian Women Lawyers’ (2015), 15 QUT Law Review 1, 35

Seminar Notes
- This looks at the cultural context of legal practice
 We look at data and research on ways in which culture of practice is gendered
 How do gendered practices sit with profession’s ethos and ethical obligations?
- Bigger disparity between men and women in the senior levels, men dominating the legal practice
 Common practice after the Bar is single practice and thus, women focused on family-planning may not
consider this career pathway
 sometimes shifting on the client-based: where corporate clients are often male, women may feel less
comfortable?!
 one of the big explanations for disparity: ‘one of the worst things is that in my workplace, and I think in
the law in general, there is a view that things are really good for women now. that makes it virtually
impossible to call out systemic and insidious gendered issues’
o we make the assumption that the legal system is better and thus, we feel there is not much need to
address further gendered inequality issues
 Easteal et al (393) ‘law firms remain gender stratified. Even though there has been some ‘genuine intent
in major law firms to begin to redress the gender imbalance at the higher echelons within, the policies
and procedures being implemented in Australian corporate law firms to improve the status of women
 lawyers are not working’. Successful flexible work practices may help in retaining female employees by
allowing them time and space to move up the ladder. If not truly accepted though, these flexible
arrangements can be linked to the high attrition rate of women leaving the law. And, as we discuss
below, this contributes to fewer women rising to the higher echelons, a gender pay gap and the
persistence of a masculinised sub-culture.
 Indeed, there would appear to be a variety of nexuses between the low numbers of female partners, high
rate of female attrition and lack of flexibility in the profession. Because men continue to ‘hold the reins’
at the top of these firms, a masculine management style, form of communication and ethos prevail.
Women are still represented as ‘other’, juxtaposed against the ‘normative benchmark, paradigmatic
incarnation of legality — invariably a white, heterosexual, able-bodied, politically-conservative, middle-
class’ benchmark man. Being ‘other’ for female lawyers, particularly working mothers, is ‘systematically
factored into the structuring of contemporary legal practice, and has also lodged deep within the
recesses of the legal psyche’
– structural issues: larger number of women coming in the law force, but also larger number of women
leaving the profession
o Similar to Hunter’s view: being female lawyers, particularly working mothers, is ‘systematically
factored into the structuring of contemporary legal practice, and has also lodged deep within the
recesses of the legal practice’
o Cultural change – knowing how to change, and to make change work (405): the emergence of
NewLaw practice is a reform of the old system, BigLaw
o Solutions? (407-410): yes, there are solutions, but it’s a slow progress – eg. redefine the traditional
lawyer and the meaning of success; should the regulator has a larger role for ADR? Which calls for
diversity in training requirement
 Hunter (2011): it is a cultural analysis – despite rapid declining numerical dominance, the
marginalization of women due to cultural domination of white, middle-class male (26)
o female fitting in: entails ‘loss of professional credibility’ and ‘requires strategic performances and
disciplined and ‘practices of the self’ which themselves make professional life more burdensome for
women and function as a form of subordination’ (26)
o How does this subordination of women show up in practice per Hunter?
 women lawyers as decorative and sexualized bodies  objectification of women
 selling law through sex(uality)
 use of innuendo and rumour to de-professionalise: “sexual activity for a man even if of
questionable legality, is rarely seen to detract from his professional competence… whereas it is
always problematic for a woman” (30, quoting Thornton)
 Hiding of the pregnant body
 Harrassment
 Sexuality as a ‘management resource’ (per Sommerlad & Sanderson)
o “practices of the self” (p30-33)
 assimilation or ‘passing’ – containing the feminine
 acquiring (cultural) knowledge to ‘fit-in’
 adapting to the long hours culture and its impact on relationships, and especially child-
bearing
 concealing pregnancy
 managing pregnancy to fit round work
 (p32) women who adopt the individual de-sexing strategies eschew a collective consciousness of
women’s subordination in the legal profession and hence are unlikely to mentor or support
other women
 Cross reference to Easteal e al. (2015) [not in Hunter]: “There is a perception of the ‘ideal
lawyer’ being ‘the unencumbered worker [a]s the worker who you know will go far’, which
assumes he is able to ‘slough off relational ties in order to devote himself unconditionally to
work’.” (p396 SM)
  Note references also to employers discussing with women whether they would consider
having an abortion to further their career. In what world is that appropriate!?
 Also extent to which male social activities are not incidental but central the business of
lawyering (rainmaking closely interlinked with entertaining of clients and ability to make time to
socialise (without the challenge/expectation of domestic labour). Concludes that “within [this
context of] hegemonic masculinity, de-sexing strategies can only gain limited traction” (34)
o Could be women that “de-sexualize” are embarrassed that they have refused the traditional view of
women entering motherhood by focusing on their profession?!
o Difficulty of complaining may be applicable to both genders, but it may be more significant to
women
 ‘A notable theme of women’s accounts has been the enormous difficulty of making formal
complaints or doing anything to stop the harassment other than… leaving the firm’. Complaining
not only violates professional codes and involves significant professional risk, but it also entails
further self-identification with one’s invidious embodiment (p381 SM)
 (Not in Hunter): consider also how cultural masculinity may limit organisation’s capacity to
respond when a complaint is made
 “throughout my own experience of reporting an incident of sexual misconduct – it was clear
that the firm was not prepared for, and lacking in the relevant expertise, to deal with a
complaint of such a serious nature” – by an anonymous on legalcheek.com
- How well-equipped are firms to address these issues such as gendered inequality + stereotypes?  policy
question
 Knowing how to change, and make change work – Easteal et al (p405 SM)
 A 2006 Victorian study revealed that: ‘only 44% of lawyers using flexible work practices agree that it is
possible to work flexibly and have a career in their organisation, and 67% of lawyers using flexible work
practices are dissatisfied with the negative impact that working flexibly has on their career prospects.’
Part of the problem may be that some workers and managers are unaware of what types of flexible work
practices actually exist. Accordingly, law firms must prioritise helping supervisors learn to manage
flexibility by providing partners and managers with the necessary practical management skills,99 as well
as developing a strategic ability to see the long term benefits of using flexible work practices. This is
essential, since supervisors act as ‘gatekeepers to the flexible workers’ career development (eg, via the
allocation of work), career progression and integration into a practice group’.
 We also acknowledge that firms must ensure that support staff and colleagues are educated about the
challenges of working flexible hours:
 Redefining the traditional lawyer and the meaning of success is the beginning to making an effective
cultural change in law firms. (407)
 [Regulators] could therefore impose any or all of the following conditions on the practising certificates of
legal practitioners who are in any supervisory role:
 to undertake mandatory training about flexible work practices as part of their continuing legal education
training program. This could involve some or all of the practical steps discussed above and could be done
in the context of specific areas of law or additional modules, to avoid firms missing out on training in
their specialised areas; and
 to raise the standard of when a request for flexible work arrangements can be refused on ‘reasonable
business grounds’. (409)
 ADR role for the regulator? (410)
 Other measures? How do these problematic practices sit with core ethical principles: integrity,
(fairness/equality) duty not to bring profession into disrepute?
 Have non-discrim rules – more positively require EO policies and procedures, incl pay transparency.
Equality data and data monitoring by the regulators
 15. and 16. CONFLICTS OF INTEREST

Part 1: The lawyer-client conflict

In seminar 7, we saw that lawyers owe various duties to their clients, including a fiduciary obligation which
demands that lawyers give undivided loyalty to their clients ‘without being distracted by other interests
including personal interests’ (R v Neil [2002] 3 SCR 631] cited in Dal Pont, Lawyers’ Professional Responsibility
(2017)(6th ed)).
But what if a lawyer’s own interests, or those of someone closely connected to the lawyer, conflict with the
duties owed to the client?

Required Reading
 Solicitors’ Rules 2015, rule 12 (LMS)
 G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, 2016) [6.05]-[6.15], [6.25]-[6.40] (Lawyer-
Client Conflict) (SM). Note that footnote 9 is missing the word “not” and should read “do not explicitly
provide...”

Seminar notes
- Underlying question: does current conflicts regime/regulation reinforce or undermine the duty of loyalty?
 Raises the question: what is wrong with conflict of interests?
o Goes against your fiduciary duty as a lawyer (to act in the best interests of the client, not our own)
 The threat to client’s interest: similar to that of “vendor-purchaser” relationship, here the
lawyer is the vendor
 Fiduciary responsibility/duty: contractually, it refers to the (utmost) duty of good faith  aka
duty of loyalty
 Conflict of interest can be between your client’s and your own’s or your client’s and a third party
- Parker & Evans (2018):
 you breach your fiduciary duty by placing yourself in a potential position of conflict of interest –
potential is sufficient for a lawyer to refuse to act as legal representation, to avoid conflict
- conflicts of interest – taxanomy
 lawyer-client
o conflict between L’s self-interest and duty to client
 concurrent client
o having more than one client at the same time (currently) which may have interests that conflict
(adverse), so L cannot fulfil duties owed to both simultaneously
 successive client
o duty to act in best interests of current client (potentially) inconsistent with duty owed (usually
confidentiality) to a former client
o lawyer is continuously bound by the duty of confidentiality even after the retainer has run its course
- Dal Pont (413): lawyers should “foreswear all compromise of their integrity and... repudiate the creation of
[any] personal interest which could bring them into conflict with their duty to their clients”
 Common motives that give rise to conflict of interest: money; not many choices of lawyers (eg. most
people refer to one law firm)
- Lawyer as fiduciary
 General definition: Someone who act for another under the obligation of loyalty
 The root problem: divided loyalty
 Lawyer’s liability (consequences from fiduciary duty)
o Negligence or breach contract – common law damages for loss
o Breach of fiduciary duty owed to first client – equitable compensation
o Can also be disciplinary consequences
 The court has a jurisdiction to restrain a fiduciary duty owed by a lawyer
- Dal Pont (219): Conflicts and client autonomy
 Position of general law v Disciplinary norms (can we find ways even where there is a potential conflict,
we can justify for the lawyer to act regardless?)
o Solution: the notion of informed consent to be obtained from the clients
 “on most occasions the presence of a conflict of interest will make it improper or even impossible for
the lawyer to continue to act”
 “but because the COI rules are directed to serving clients’ interests... clients may relax them”  give
informed consent
o But this notion is problematic: what do we really mean by informed consent, what is the standards?
 Conflicts, consent and client motivation
o Why would a client retain a lawyer who cannot give undivided loyalty?
 The risks of informed consent
o Informed consent in practice may not necessarily be enough (Dal Pont, 6.30)

Part 1: Lawyer-Client Conflict

Dal Pont, Chapter 6, 2016 (416-7)
- Mostly arise in transactional settings, issues of wills and property, family law matters
- Usually in legal practice, it may occur when lawyer appears as a witness which
 However, it can also not necessarily be a conflict of interest when a lawyer represents their family
member in a criminal proceedings because they know their client best
- Solicitor-client conflict: The Australian Solicitors’ Conduct Rules (ASCR)
 Rule 12: Conflict Concerning a Solicitor’s Own Interests (12.1 - 12.3.2)
o R12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the
best interests of a client and the interests of the solicitor or an associate of the solicitor, except as
permitted by this Rule.
o R12.2: A solicitor must not exercise any undue influence intended to dispose the client to benefit
the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client.
 shows that most conflict is formed in financing the legal service eg. gifts from clients to solicitors
o R12.3 is about must not borrow money, nor assist an associate to borrow money from...
(interestingly, it doesn’t say about lawyers may lend client some money)
 R12.3.1 a client of the solicitor or of the solicitor’s law practice; or
 R12.3.2 a former client of the solicitor or of the solicitor’s law practice who has indicated a
continuing reliance upon the advice of the solicitor or of the solicitor’s law practice in relation to
the investment of money, UNLESS the client is:
(i) an Authorised Deposit-taking Institution;
(ii) a trustee company;
(iii) the responsible entity of a managed investment scheme registered under Chapter 5C of the
Corporations Act 2001 (Cth) or a custodian for such a scheme;
(iv) an associate of the solicitor and the solicitor is able to discharge the onus of proving that a
full written disclosure was made to the client and that the client’s interests are protected in the
circumstances, whether by legal representation or otherwise; or
(v) the employer of the solicitor. […]
 Conflict of interest may not just arise from what you’re doing as a lawyer, but also from what you’re
associate is doing – “associate” definition in ASCR
o Anyone in the same legal practice, it can also extend to your immediate family and immediate family
of other people who are your associate
o Dal Pont [6.15] defined associate as: Where an individual lawyer cannot act because of a conflict
between interest and duty, that conflict is not avoided by another person in the lawyer’s firm, or a
person not entirely independent of the lawyer, taking on the matter. Loyalty – or at least the
appearance of loyalty – could be sacrificed were this allowed. [The proscription extends to
“associates”:]
  “associate” in reference to a solicitor means
(a) a principal of the solicitor’s law practice;
(b) a partner, employee, or agent of the solicitor or of the solicitor’s law practice;
(c) a corporation or partnership in which the solicitor has a material beneficial interest;
(d) in the case of the solicitor’s incorporated legal practice, a director, officer, employee or agent
of the incorporated legal practice or of a subsidiary of the incorporated legal practice;
(e) a member of the solicitor's immediate family; or
(f) a member of the immediate family of a partner of the solicitor's law practice or of the
immediate family of a director of the solicitor’s incorporated legal practice or a subsidiary of the
incorporated legal practice.
- Note: When considering lawyer-client conflicts, think about what the rules/regulations don’t include to
protect or prevent in the name sake of the integrity of the lawyer profession
- Legal Fees
 Note r12.2 ASCR: A solicitor must not exercise any undue influence intended to dispose the client to
benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client
 Legal fees and other (intractable) lawyer-client conflicts
o Subtle conflicts may be when a lawyer refuses a case due to fear of a conflict – these are conflicts
that don’t arise in ASCR
 Parker & Evans (2018) (221 or p416 in SM)
o “Underlying all lawyer-client relationships … is the fact that a lawyer’s interests are in conflict with
their client’s interests ‘the minute they begin work for a client, since their interest in making a larger
income conflicts with the client’s interest in paying as little as possible for solving his or her legal
[problems]’.
o Moreover, the fact many lawyers are employed by law firms means that their interest in serving
their employer law firm (by clocking up billable hours) may well conflict with their fiduciary duty to
their client.”
- Informed Consent
 Parker & Evans (2018) (222 or p417 in SM)  Client informed consent/authority
o “[The disclosure] must be a conscientious disclosure of all material circumstances, and everything
known to him relating to the proposed transaction which might influence the conduct of the client
or anybody from whom he might seek advice. To disclose less than all that is material may positively
mislead. Thus for a solicitor to merely disclose that he has an interest, without identifying the
interest, may serve only to mislead the client into an enhanced confidence that the solicitor will be
in a position to better protect the client’s interest.”
 Street CJ in Law Society of NSW v Harvey
 Dal Pont (2016, p415) [6.30] on the Risks around Informed Consent
o Yet a lawyer in making the above disclosure lacks distance from the conflict, which may dictate that
even with the best of intentions the disclosure may not properly avoid bias. Also, lay clients may
place trust in the superior legal knowledge of their lawyer, and may be willing to accept the lawyer’s
assurances simply because it is the lawyer who has given them. A prudent lawyer will, therefore,
insist that the client receive independent legal advice on the matter if there is any inclination to
continue the representation. Such advice serves to reduce the scope for the lawyer’s own influence
in a client’s decision to continue conflicted representation, and has the benefit of being supplied by
a person with no conflicting interest in the matter. The latter explains why a partner, associate or
employee of the conflicted lawyer is presumed to be incapable of giving independent advice. […] It
stands to reason that any client consent, and the advice behind it, should be documented
- R.12 ASCR summary: scope and operation
o Note the underlying problem we have, is no clear definition of “interest”
o Stated exceptions in 12.4
o Note ‘prophylactic’ function of rule (Dal Pont)
o Conflicts around fees and billing not acknowledged to be such
 o Fully informed consent might cure but not a “fix-all” (as in there is no guarantee it addresses
conflicts)

Part 2: Client-Client Conflict

What if your duties to one client conflict with your duties to another client, past or present?
In the first part of this seminar, we saw that lawyers must avoid placing themselves in a position where their
own interests, or those of someone connected with them, conflict with their duties to the client.
But what about circumstances in which the lawyer’s duties to a current client conflict with their duties
(i) To another current client, a problem known as a ‘concurrent conflict’ or
(ii) To a former client, a problem known as a ‘successive conflict’?

The likelihood of such conflicts has increased as a result of the increasing size of law firms, some of which have
thousands of current and former clients on their books.

Required Reading
Law Institute Victoria, ‘Information Barrier Guidelines Summary’, Ethics Guidelines (Summary Report, 17
November 2016)
< https://www.liv.asn.au/getattachment/Professional-Practice/Ethics/Ethics-
Guidelines/201601117_GDL_ETH_InformationBarriers_CouncilApproved_Final.pdf.aspx>
Law Institute Victoria, ‘Conflict of Interest Guidelines’, Ethics Guidelines (Summary Report, 15 September
2016) < https://www.liv.asn.au/LIVPublicWebSite/media/150th-Anniversary-
2009/LIV%20Documents/20160915_GDL_ConflictOfInterest_FINAL.pdf> (SM)
- Solictors’ Conduct Rules 2015, rules 10 and 11(LMS)
- Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 3rd ed, 2018) pages
226-236 (SM)
- Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065 (extracts) (SM)

Seminar: Concurrent & successive client conflicts aka Client-Client Conflict

- Parker & Evans (228): “the whole point of prohibiting conflicts of interest is that the lawyer’s own
judgement, and ability to fully inform and advise the client about the conflict, might be clouded by the
conflict.”
 Hence the preventative/prophylactic approach: The rule against conflict of interests is breached simply
by placing oneself in a situation in which one’s loyalties are divided.
 Actually engaging in conduct that subordinates the client’s interests to some other interest(s) is a
distinct matter, giving rise to one or more separate breaches
- In what circumstances does the duty and interest conflict most often arise in case law?
-  If they are in a continuing retainer, they are still your client  client-client conflicts
 When law firm currently has 2 clients with adverse interest
 Eg. Partner A in banking and finance acts for bank suing building company in liquidation, while Partner B
in insolvency section acts for the building company in the same matter
o Partner B can’t say anything to Partner A, even though as a firm they all owe duty to all the clients
that the firm has  but ultimately, still breach of fiduciary duty because
- What do we mean by successive (former) client conflicts?
 What is it that a lawyer shouldn’t do – in terms of former and current clients?
o Confidentiality maintained, but also you owe a continuing fiduciary duty to your former client
because this is a life-long duty unless the client expressly ends this relationship aka “fire you as their
lawyer”
o Law firms owes duty (eg. of confidence) to former client whose interests are adverse to a current
client of the same firm
- Concurrent Conflicts and the Fiduciary Duty
 Dal Pont [7.10] In prohibiting the representation of multiple clients with conflicting interests
(“concurrent conflicts”), courts and professional rules give effect to fiduciary principle
 The concern is disloyalty, although this can be manifested in ways that would otherwise generate
liability independent of the fiduciary breach. For instance, although a failure to disclose to a client
information relevant to the representation may constitute negligence (see [5.80]) when the reason for
the non-disclosure is a duty owed to another client, the cause of action can also be framed in breach of
fiduciary duty
- Concurrent Conflict and Duty of Confidentiality
 Dal Pont [7.20] For example, the lawyer’s duty of confidentiality to one client may conflict with the duty
to act in the best interests of another client. This occurred in Hilton v Barker Booth & Eastwood, where
the solicitors did not disclose information in their possession pertaining to client A – A’s antecedents as
a fraudster – to client B with whom A was transacting. The English Court of Appeal explained the point
this way:
 “While [A and B] remained clients, each had an equal priority, and was entitled to the same standard of
loyal observance of the duties owed to each, up to, but not beyond their full ambit … By loyally fulfilling
the obligation of confidentiality to [A], [the solicitors] were simultaneously acting contrary to [B’s] best
interests, and by retaining him as their client, they restricted his opportunity to discover the unpalatable
facts about [A] from sources which were not bound by the same obligation of confidentiality. In short,
the best interests of one client were prejudiced to the advantage of the other. That was impermissible,
whichever client was favoured.”
- Concurrent Conflict: Practical consequences
 Not covered by professional indemnity insurance
 Disciplinary sanctions
 Unable to recover legal fees
- Concurrent Conflict raises the Need for Constant Vigilance (surveillance) by the solicitor
 Dal Pont [7.25] As explained by Byrne J in Marron v J Chatham Daunt Pty Ltd:
 “Where a party is contemplating retaining a solicitor who acts for another … the party will often not
recognise a conflict which is possible, pending or even then existing. It is the solicitor who should in the
normal course be the first to apprehend this. And so the parties rely upon the solicitor, not only to have
the integrity to withdraw when conflict arises, but also the perception to sense its pendency before it
arises in fact. The solicitor, then, must be constantly vigilant and alert to perceive the possible
emergence of a conflict of interest.”
 Dal Pont [7.30]: The basic proscription is that a lawyer must avoid conflict between the interests of two
or more clients. … [T]his proscription aims to foster undivided loyalty by lawyer to client, which cannot
be fulfilled for clients who have interests that are, for the purposes of the retainer, in opposition.
 No such problem arises where there is an identity of interest or separate clients with unrelated
interests, and for this reason there is no outright legal or professional prohibition on concurrent
representation.
- Why are conflict of interests evolving?
 The increasing fluidity in the job market, for both clients and lawyers
 Scale and size of some projects that a law firm may be involved with eg. representing big firms but also
part of class actions/protests
 Some other factors:
o Increase lawyer’s mobility
o Growth of Big Law firms – firms competing in same pool for same (elite) clients eg. 20 global law
firms competing for the international financial trades and ventures
o Mergers of law firms and also of business clients
o Resurgence/strengthening of fiduciary law
  Courts have shown a reluctant to weaken fiduciary law – standard of care has not been
diminished just because of increasing client duplicity/complexity
o Increased specialization among law firms (narrows pool of expertise)
- ASCR Rule 11: current client conflicts [look at r11.1 - r11.5]
 Primary obligation is r11.1 – must avoid conflict between current clients
o R11.2 if a solicitor or a law practice seeks to act for two or more clients in the same or related
matters where the clients’ interests are adverse and there is a conflict or potential conflict of the
duties to act in the best interests of each client, the solicitor or law practice must not act, except
where permitted by rule 11.3.
o R11.3 provide exceptions to lawyer acting for potential conflicts of interest as long as client has
knowledge of it (r11.3.1) and obtained informed consent (r11.3.2)
 And as long as lawyer can act in best interests of all their clients
o R11.4 builds on r11.3 in regards to informed consent  ‘Information barrier’, is it essential or
option?
 in addition to the requirements of rule 11.3, where a solicitor or law practice is in possession of
information which is confidential to a client (the first client) which might reasonably be
concluded to be material to another client’s current matter and detrimental to the interests of
the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law
practice must not act for the other client, except as follows:
 11.4.1 a solicitor may act where there is a conflict of duties arising from the possession of
confidential information, where each client has given informed consent to the solicitor acting for
another client; and
 11.4.2 a law practice (and the solicitors concerned) may act where there is a conflict of duties
arising from the possession of confidential information where an effective information barrier
has been established.
 Note: “and” suggests they are conjunctive – they are all essential
 See Dal Pont concerns at pp 252-253
 ‘Information barriers’ (IB) = designed to deal with former client conflicts and cure for
current client conflicts but only in condition to informed consent, thus they are not a
complete “cure”
 Elements of IB may include digital blocking to access certain client files, physical barriers
in the workplace ie. lawyer X is not permitted to enter a room, individual lawyer is
prevented from undertaking specific matters but if they do then there is severe
penalties, moving people within the law firm’s building
 How useful/effective is this provision on IB in real life practice?
 Easier to direct/guide lawyer’s actions but there is no guarantee it is directly followed
through due to lack of policing of lawyer’s conducts
 Judicial skepticism: Courts are nervous/skeptical about ad hoc schemes
o R11.5 If a solicitor or a law practice acts for more than one client in a matter and, during the course
of the conduct of that matter, an actual conflict arises between the duties owed to two or more of
those clients, the solicitor or law practice may only continue to act for one of the clients (or a group
of clients between whom there is no conflict) provided the duty of confidentiality to other client(s) is
not put at risk and the parties have given informed consent.
 When solicitor take up two clients with their consent but actual conflict arises, lawyer must drop
one client
- Concurrent conflict: Application to the firm
 Dal Pont [7.40] The fiduciary proscriptions extend to the firm in which the lawyer is a partner, associate
or employee.
o This is because, where a law firm is involved, clients ordinarily retain the firm, but not an individual
lawyer
- Concurrent conflict – are the duties truly adverse?
  Dal Pont [7.45] In Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd, for example, a
law firm acted for a client in one proceeding in Queensland and against that client in unrelated
proceedings in Victoria. That the proceedings were truly unrelated, and handled by different offices of
the firm (in the Queensland proceedings, on the instructions of the defendant’s own lawyers), when
coupled with assurances from the firm that appropriate safeguards would be put in place, led
Habersberger J to reject an application to restrain the firm from continuing to act for the plaintiff. His
Honour’s order was conditional on the Melbourne office undertaking to the court that it would seek no
information from the Brisbane office about the Queensland proceeding. … The decision would likely
have gone the other way had the matters been in any way related
- Concurrent conflict: Consent
 The principal may consent
 Operates in two ways:
o Limiting the scope of the retainer
o Client consent to concurrent conflict at outset or during course of retainer
 Informed consent means, according to the privy Council in Clark Boyce v Mouat:
 “… consent given in the knowledge that there is a conflict between the parties and that as a
result the solicitor may be disabled from disclosing to each party the full knowledge which he
possesses as to the transaction or may be disabled from giving advice to one party which
conflict with the interests of the other.”
- Why would a client retain a lawyer who cannot give undivided loyalty?  Marks & Spencer
 9. M&S say that Freshfields have over the last five years been used for the majority of M&S's complex
and/or high end contentious work.. Freshfields have also advised in relation to a number of important
commercial and employment matters. As a result, Freshfields have acquired confidential information
about the supply chain, including the term of supply of contracts, pricing policies, supply volumes and
M&S's attitude to termination and renewal of the same. In addition, they have acquired information
about logistical arrangements such as processes for transportation, dependency on food supply lines
and the Per Una product range, including the terms of the contract arrangements with Mr. Davies and
also information about senior management contracts.
 11.The application is made on two bases. The first is on the basis that M&S is an existing client
of Freshfields who have been retained to advised M&S in connection with on-going negotiations in
relation to one of M&S's main contractual arrangements with a view to re-structuring the arrangements.
There is an actual potential conflict of interest between the interests of M&S and the interests of the
consortium to which M&S has not consented. Secondly, as I have said, the application is based on the
duty of confidentiality, on the basis that Freshfields are, in any event, as a result of the services
performed by them for M&S over a number of years, in possession of confidential information belonging
to M&S which is or may be relevant to the retainer which the solicitors have for the consortium.
 19. The way in which Freshfields were instructed was that on 4th May they were contacted by the
chairman of Arcadia Group, which is owned by Mr. Green's family to ask whether they would act on
behalf of the consortium. Mr. O'Brien was the partner who was so approached and he instituted a
conflicts procedure and was given clearance by the firm, obviously after having taken account of all the
matters in which they were or had been instructed by M&S to accept instructions on behalf of the
consortium. The view which they took, no doubt bona fide, was that the Davies contractual
arrangements had been entered into in the ordinary course of business and were not material in
relation to a possible bid. A problem first arose on about May 19th when Mr O'Brien became aware that
those arrangements would be the subject of a due diligence question by Mr. Green. Freshfields, he said,
did not instigate the question, nor had they told the consortium that they had acted in the matter, but
he instituted a formal information barrier in consequence.
 20. In essence, Freshfields say that this is really a very common situation and if every City firm of
solicitors were forced to conclude that any unrelated matter, how much in the ordinary course, on
which it might have advised, even if the arrangement were continuing, might blow up into an issue of
major significance, the consequence would be unworkable. In situations such as the present, it would
 be normal to find that a solicitor invited to act for a potential bidder would have some engagement,
even still current, to advise the target company on discrete issues not amounting to main corporate
advice
 22. Freshfields say that this case is not a case anything like a single transaction. There was no reason
to think that the Davies arrangements were material. This is a takeover bid, it may not even be
hostile, and it is not the same as a conflict between two rival bidders or retailers. Freshfields were not
the general corporate lawyers of M&S, and most of the evidence is really about confidential
information and not about conflict. They also say on the instructions of the consortium, but without
any evidence, that it would be difficult if not impossible, given the passage of time, to find another
firm of solicitors to act for the consortium.
 24. I am satisfied that there is a real or serious risk of conflict. The Davies contract is a very important
part of the M&S business. On the evidence before me, it is also a very important part of the tactics of
the bid and it does seem likely that some form of criticism will be made of it, and that if Freshfields are
acting for the consortium they will be putting their names or at any rate approving documents which are
in direct conflict with their present duty to act in the best interests of M&S in connection with the
restructuring of the contracts. In particular, I was told, although this may not be fully reflected in the
evidence, that steps could be taken by M&S to ensure that the contracts continue irrespective of any
bid.
 26.The principal ground for an injunction, therefore, is the actual or potential conflict of interest in
which Freshfields find themselves.
 27. On the second, and alternative, basis of the application, there is, obviously, a huge amount of
confidential information relating to the affairs of M&S within Freshfields. Some of it is, plainly,
material to a potential bid, if only to be discarded as not being sufficiently important. I cannot see,
even with a firm of the size of Freshfields, that any effective barriers could be put in place given the
very large numbers of people concerned even on the two matters in relation to which I have details of
the personnel involved. If the other matters are taken into account, there must be very many
members at Freshfields who have a great deal of knowledge about the affairs of M&S. In those
circumstances, it seems to me that, to the extent that the information is confidential, and I am
satisfied that there is a great deal of confidential information, Chinese walls would not be perceived
to be – perception here is very important – sufficient.
- Sale of Land Act 1962 – s29W
 Legal practitioner or conveyancer not to act for both vendor and purchaser under a terms contract
 S. 29W(1) amended by No. 23/2016 s. 35(2).
o (1) A legal practitioner or conveyancer whose principal place of business is within a 50 kilometre
radius of the intersection of Elizabeth and Bourke Streets in Melbourne must not act for
both vendor and purchaser under a terms contract.
 s29A: What is a terms contract?
(1) For the purposes of this Act a contract is a terms contract if it is an executory contract for
the sale and purchase of any land under which the purchaser is—
(a) obliged to make 2 or more payments (other than a deposit or final payment) to
the vendor after the execution of the contract and before the purchaser is entitled to a conveyance
or transfer of the land; or
 S. 29A(1)(b) amended by No. 12/2015 s. 7(1).
(b) entitled to possession of the land or to the receipt of rents and profits before
the purchaser becomes entitled to a conveyance or transfer of the land
- ASCR r10 successive clients: conflicts concerning former clients
o If he/she is a former client, you can act without requiring their informed consent – significant
relaxation to the earlier rules mentions
 r10.2 However, if the confidential of former client might reasonably be concluded to be material
to the matter of another client and detrimental to the interests of former client if disclosed,
solicitor must not act for the current client UNLESS
  r10.2.1 the former client has given informed written consent to the solicitor or law practice
so acting; or
 r10.2.2 an effective information barrier has been established.
 Where this rule might be problematic?  Parker & Evans
o Potential conflict is nevertheless an actual conflict?
o R10 creates rather than get rid of conflict problems – problem of ‘conditional loyalty’
 Successive conflicts:
o The legal basis
 Confidentiality
 Public interest in the proper admin of justice
o Individual lawyer
 Protection against even subconscious misuse of former client info
o Law firm
 Conflict binds the firm
 Different lawyers and use of information screens (Info Barriers)
- Restraint: the role of the courts in managing conflicts
 3 grounds/bases that lawyer can be restraint for acting in conflict situations
 Court will restrain lawyer from acting for new client, even if first retainer has come to an end if:
1. Unacceptable risk to confidential info; or
2. Spincode loyalty; or
 Note: the SCR does not contain equivalents to the general law grounds (i) the administration of
justice and (ii) Spincode
3. Administration of justice/public policy grounds
 Recall: Disciplinary rules and fiduciary law (fiduciary duties/obligations)
o Often you need to take measure quickly in order to succeed in the claims for violations of these
rules and obligations
1. Unacceptable risk to confidential info: Duty of confidence owed by lawyer to client in equity
 Cannot act for both clients concurrently
 Duty of to maintain confidence endures for benefit of former client after retainer ceases
 [Dal Pont 8.135] Determining whether a court should disqualify a lawyer from acting against a
former client involves a balancing of various competing interests. The former client will, for this
purpose, focus on her or his interests in maintaining the confidentiality of information … and
may support this by reference to the matter of appearances. … The current client, in addition to
seeking to downplay the prospect of misuse of confidential information, may cite the
importance of client choice of legal representative … and the potentially adverse consequences
of disqualification for the efficient resolution of the dispute.
 “The court’s jurisdiction cannot be based on any conflict of interest, real or perceived, for there
is none. The fiduciary relationship which subsists between solicitor and client comes to an end
with the termination of the retainer. Thereafter the solicitor has no obligation to defend and
advance the interests of his former client. The only duty… which survives… is a continuing duty
to preserve the confidentiality of the information imparted during its subsistence.”
 Per Lord Millett in Bolkiah v KPMG [1999] AC 222, 235
 Dal Pont [8.30] Awaiting High Court authority on the point, Lord Millett’s focus on confidentiality
has proven persuasive for most Australian courts.
 [8.35] The focus on confidentiality impacts on the relevant onus; the former client must identify
information confidential to her or him in the lawyer’s possession that the lawyer may use to the
former client’s prejudice
 Carindale test: [Dal Pont 8.70] – there must be a real risk that confidential info might be
used by the solicitor to advance interests of a new client to the detriment of the old client
 Dal Pont [8.70] The lawyer cannot compartmentalise her or his mind so as to screen what has
been gleaned from the client from what was acquired elsewhere. Attempts to do so could
 prompt the lawyer to avoid using information acquired legitimately for fear that it might be
perceived to have come from the former client, which would in turn undermine the adequate
representation of the new client. For this purpose, “relevant confidential information” can be
defined as information:
 Originally communicated in confidence;
 That remains confidential and may reasonably be considered remembered or capable, on
the memory being triggered, of being recalled; and
 Relevant to the subject matter of the subsequent proposed retainer
 When considering Confidential Info, you must look for: Consent or Waiver
 ‘Getting to know you factors’ per Gill & Wynde [2016] FCWA 40
 Dal Pont [8.135] Confidential information is commonly associated with verbal or written
communications, but it may not always be confined to these. A previous retainer may leave
the lawyer with impressions of a client’s character, personality and attitudes, which could
subsequently be used to the detriment of that client. ... [T]hey may carry weight even
where the retainers are unrelated; after all, they pertain to a particular client, not to a
particular matter.
 At para [40] in Gill & Wynde quoting Karapataki & Karapataki [2011] FMCAfam 6:
36. …legal practitioners can often learn a great deal about a client's personality, weaknesses
or strengths, honesty (or perhaps dishonesty), fears and reactions (including reactions to
pressure or tension). Similarly, legal practitioners can learn much about a client's attitude
and approach to litigation. In Yunghanns v Elfic Ltd (Unreported, Supreme Court of Victoria,
Gillard J, 3 July 1998), Gillard J described these considerations as "getting to know you"
factors.
 37. In a case where a former client's credibility becomes a matter of significance, his or her
former legal practitioner's knowledge of the "getting to know you" factors can become a
powerful weapon at the disposal of the practitioner's new client. Irrespective of the actual
effectiveness of the weapon, it can be anticipated that the former client would feel anxiety
about the potential of being cross-examined by a practitioner who might be perceived as
being in a position of unfair superiority – or by Counsel instructed by such a practitioner.
2. Spincode loyalty: Fiduciary duty of loyalty owed by lawyer to former client??
 This third base is a controversial/contentious factor about continuing duty of confidence
 The Spincode rationale: loyalty endures after end of retainer (perhaps regardless of the risk...
 Victorian courts may restrain lawyer from acting in same or closely related matter even if
no confidential info can be identified:
 Legal basis:
 Equitable obligation of loyalty which survives end of retainer: Spincode
 Spincode Loyalty (2001) 4 VR 501
 [38] There is a good deal of authority for the view that a solicitor, as an officer of the court, may
be prevented from acting against former client even though a likelihood of danger of misuse of
confidential information is not shown.
 [52] I think it must be accepted that Australian law has diverged from that of England and that
the danger of misuse of confidential information is not the sole touchstone for intervention
where a solicitor acts against a former client.”
 [60] [there are] three independent bases: first, the danger of misuse of confidential information;
secondly, breach of the fiduciary's duty of loyalty; thirdly, the desirability of restraining the
solicitors as officers of the Court.”
 [58] If I thought that the solicitors in this case were subject neither to a negative equitable nor
to a negative contractual obligation, I would say that what has been done by them - and I would
have regard to the whole of their conduct here - is so offensive to common notions of fairness
and justice that they should, as officers of the Court, be brought to heel notwithstanding that
they have not (on this hypothesis) infringed any legal or equitable right…. No experienced
 solicitor of sound judgment would have done what has been done in this case. And in my view
the nature and objectives of the jurisdiction which the Court exercises over its officers, and the
breadth of the discretion, permit regard to be had, not only to the nature of the dispute before
litigation ensued, and the former retainer, and the new one, but also to the conduct of the
solicitors at all stages. This includes the partisan approach of Kirton when he acted for the
company and his undisclosed attempts to serve Moore's interests, the peremptory and
unseemly way in which the solicitors changed sides, their denials that it was the company which
had been their client and the uncandid affidavit of Kirton in which he tried to give the
impression that the company had not been the client. It would, as they used to say, be pessimi
exempli if McPherson + Kelly were not called to account.
 Dal Pont [8.40 on Spincode] It may … be that Brooking JA was heavily influenced by the
unprofessional conduct of the law firm before him. The firm had acted for a company since its
incorporation, and continued to act for the company even when disputes arose between its
shareholders, whilst at the same time covertly advising two of the shareholders in relation to
the disputes. It was then retained to act for one of the shareholders in winding up proceedings
against the company. This presented the court with a case of a law firm acting for one client
whilst having acted for other clients in matters arising out of precisely the same dispute.
Coupled with the firm’s refusal to acknowledge that the company had every retained it
notwithstanding clear evidence to the contrary, the foregoing served to make the case an
obvious one raising the prospect of misuse of confidential information. It follows that Brooking
JA’s remarks beyond this were obiter.
 Dal Pont [8.40 on Spincode] In the final analysis, though, there may be little difference in result
in applying either the Prince Jefri or the Spincode approach in the bulk of cases. Only in cases at
the very margin, which will necessarily be exceptional, will the different approaches potentially
generate different outcomes. And in these cases it may well be that the court resorts to its
inherent, again exceptional, jurisdiction to disqualify a lawyer so as to preserve the appearance
of justice…
 Federal Court’s analysis in Dealer Support v MTAA [2014] FCA 1065
 Note the detailed rebuttal of Brooking JA’s reasoning at paras 44-52
 “Generally the preponderance of Federal Court authority is either unsupportive or equivocal”
[73]
 “I do not accept the second basis for disqualification” [89]  “second basis” aka Spincode
loyalty
 Also see Parker & Evans 428-430
 Note: it is quite restricted to not only the former clients’ conflict but to same of closely
related matter
3. Administration of justice (the public policy grounds): Inherent jurisdiction of the court over its own
officers to further the administration of justice
 Court’s residual inherent jurisdiction to control its processes
 Public perceptions
 Current or former client situation – depends on the demands of justice but does not require risk
of misuse of confidential info
 “Would a fair-minded, reasonably informed member of the public conclude that the proper
administration of justice requires that a legal practitioner should be prevented from acting, in
the interests of the protection of the integrity of the judicial process and the due administration
of justice, including the appearance of justice?”
 This is the AoJ Test from Grimwade v Meagher [1995] 1 VR 446
 Dealer Support [93]-[97]
 But: due weight should be given to the public interest in a client not being deprived of the
solicitor of its choice. That public interest is an important value, although it can be over-
ridden with due cause (WA v Ward at 498 per Hill, Branson and Sundberg JJ). [95]
  Dealer Support Services [2014] FCA 1065  analysed all three bases
o Recognizes that outside Victoria, the authority for Spincode loyalty is relatively weak
o Reasoning found the 1st basis not arise on facts, 2nd basis not available as matter of principle and 3rd
basis does not apply on the facts
o Demolish Spincode loyalty (paras 40-92)
 Conduct misconstrued
 If a duty, only where lawyer unilaterally switches sides
 Obiter – ‘diminished force’
 Vic cases apply not develop
 Other states not follow Spincode
 Federal Court not follow/equivocal
 Conceptually redundant
 Compromises Uniform Law
 Even if Spincode loyalty existed, it does not apply here in these case facts
 There is only one relevant basis for disqualification – 2nd ground: inherent
jurisdiction/administration of justice

Class scenario: Beach v Seawall

- The grounds we’re suggesting for an injunction to lawyer from acting for Seawall could be confidentiality (1st
ground); AoJ Test (2nd ground)
- When thinking whether you should act on it as a solicitor: consider ASCR r10

18. OBTAINING INFO FROM THE OTHER SIDE

Part 2: Privilege
This part of the class examines documents covered by legal professional privilege, which are protected from the
discovery process.

Required Reading
• Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths, 2018)
o [16.1]-[16.36], [16.39], [16.43]-[16.48], [16.54]-[16.56], [16.74], [16.77]-[16.79], [16.97]-[16.102] (on legal
professional privilege) (TB)

Chap 16: Client Legal Privilege (CLP)

- = communications between clients and lawyers receive special protection in every developed legal system
 this protection takes the form of client legal privilege (formerly known as legal professional privilege
 as a rule, privileged communications are immune from compulsory disclosure – absolute immunity
 this privilege is a fundamental constitutional right – enables the administration of justice due to its role in
facilitating access to justice and access to legal advice and thereby promoting the rule of law
 privileged documents and info should only be disclosed with the client’s permission
 the privilege, once obtained, continues indefinitely
 changes in terminology:
o formerly known as “legal professional privilege”, but now client legal privilege
- privilege is governed by both common law and statute, but not entirely codified under uniform evidence
legislation
- there are some notable differences between statutes and common law protections
- as legislation override common law, protection of privilege is diminished due to the limitations of
legislation’s protection
  uniform evidence legislation only applied to the “adducing of evidence”, thus does not cover the most
common scenario with some obligation to produce documents in a pre-trial setting or in non-curial
contexts
 uniform legislation is directed to protecting confidential (there are 2 components) communications and
documents, but do not extent to communications with fact witnesses, who are not under any implied
obligation of confidence
o this aspect is generally governed by the common law
o however, there are instances where courts refuse to interpret the common law in a way that is
consistent with the uniform legislation such as in Esso Australia Resources Ltd v Federal
Commissioner of Taxation
- What is CLP?
 Litigation privilege = communications between a client and qualified lawyer for the dominant purpose of
preparing for pending or reasonably anticipated litigation
 Advice privilege = communications between a client and qualified lawyer for the
 dominant purpose of obtaining, or giving, legal advice
- Litigation Privilege – Zuckerman [16.14]
 In an adversarial system, each side prepares its own case: “It is a basic requirement of fairness that
litigants should be able to prepare their case confident that others will not be allowed to invade their
sphere of preparation.”
 This is linked to the notion of fair trial. Brennan J in Baker v Campbell:
o “if the prosecution, authorised to search for privileged documents, were able to open up the
accused’s brief while its own stayed tightly tied, a fair trial could hardly be obtained.”
- S119 Uniform Evidence Law: Litigation
 Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence
would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for
the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared; for the
dominant purpose of the client being provided with professional legal services relating to an Australian or
overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian
or overseas proceeding, in which the client is or may be, or was or might have been, a party.
- Elements of privilege:
 dominant purpose
o Communications between a client and qualified lawyer for the dominant purpose of preparing for
pending or reasonably anticipated litigation
o Dominant purpose = objectively determined
o Zuckerman [16.44] Example: Pratt Holdings Pty Ltd v Commissioner of Taxation
 “Kenny J held that a report from a firm of accountants valuing the company’s business was made
for the dominant purpose of providing accounting services to the company (namely valuing the
business), and not for the dominant purpose of the company obtaining legal advice
 Notwithstanding that the valuation was obtained at the request of the company’s solicitor, who
was advising on the tax implications of a proposed corporate restructure
 Kenny J noted that documents do not acquire the protection of privilege merely because the
principal subsequently makes the advice available to its lawyer when obtaining legal advice”
 Privilege only applies if the dominant purpose which is objectively determined was to obtain
legal advice
 Confidential
o Communications that are confidential between client-lawyer for the dominant purpose of preparing
for pending or reasonably anticipated litigation
o Zuckerman [16.30] No protection for communications in the presence of a third party
 o “communications that are not made within the secure and private sphere of the client-lawyer
relationship are not protected”
o What about in-house communications within large organisations?
 “it is accepted that in-house distribution of privileged material will not destroy its confidential
nature, at least where it is distributed” only as strictly necessary
o Third parties
 [16.56] Communications with third parties, including communications between the lawyer and
non-parties, or communications between the client and non-parties that are intended to be
passed on to the lawyer, made for the dominant purpose of litigation or advice are protected
from disclosure.
- Meaning of “litigation”
 Zuckerman [16.41] “Litigation needs to be on foot or reasonably anticipated at the time the document or
communication is made. Whether litigation is reasonably anticipated is a question of fact that must be
determined objectively”
 [16.42] “under Australia’s uniform evidence legislation, litigation is defined broadly as an Australian or
overseas proceeding, and Australian court is defined to include federal, state and territory courts, and
persons authorized by law or the parties’ consent to hear evidence, and a person or body required to
apply the laws of evidence”
- Advice Privilege – Zuckerman [16.8]
 “the law accords rights and imposes obligations, which in turn can be enjoyed and enforced only if
persons are aware of them and understand their implications.”
 [16.10]: So “access to legal advice must be encouraged and protected”.
 Justice Jackson of the US Supreme Court in Hickman v Taylor:
o “[T]he lawyer and the law office are indispensable parts of our administration of justice. Law-abiding
people can go nowhere else to learn the ever changing and constantly multiplying rules by which
they must behave and to obtain redress for their wrongs.”
- S118 Uniform Evidence Law: Legal advice
 Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence
would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or
another person; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal
advice to the client.
- Underlying empirical assumption Zuckerman [16.10]
 If communications between lawyers and clients “had to be disclosed whenever they were required for
the determination of an issue before the court, clients would feel inhibited from divulging confidential,
private or sensitive info to their lawyers for fear that it may be used against them in litigation or be made
public”
- Application to advice privilege Zuckerman [16.18]  when advice privilege might be used by clients
 1. “Sometimes clients will want advice about past conduct which may give rise to legal liability on their
part”
 2. Sometimes advice privilege is needed where the client’s predominant concern is to protect personal
relationships, sensitivities and reputations, rather than their own self-interest”
- Meaning of “advice”
 Zuckerman [16.39] “Legal advice is not confined to telling clients what the law is, but also extends to
telling clients what should prudently and sensibly be done in relevant legal context”
 “However, advice that is commercial, administrative or policy in nature will not attract privilege”
o Eg. AWB v Cole, p678
- When CLP doesn’t apply:
 Illegality, fraud, iniquity
 o [16.77] Communications made for illegal or improper purposes, such as the furtherance of crime of
the commission of fraud or furtherance of iniquity are not privileged
o [16.78] Communications for the purpose of seeking legal advice in order to defence oneself from a
criminal charge or a claim for fraud are privileged, as are communications of breach of contract or
commission or tort
 Waiver
o [16.97] Once a client has waived privilege and the doc has been disclosed to others or in court,
privilege is lost permanently and cannot be reasserted
o [16.98] in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and
Marketing, the HC held that a waiver must be effected intentionally and knowingly, because it
involves abandoning a right.
 See s 122(2) of the Uniform Evidence Acts, which provides for waiver if the client as “acted in a
way that is inconsistent with the client or party objecting to the adducing of the disclosure to the
lawyer.
 Example cases at [16.101] and [16.102]
- the importance of CLP [Zuckerman 16.11]
 in Carter v Managing Partner, Northmore Hale Davey and Leake, Brennan J stated that the
o ‘basic justification for allowing the privilege is the public interest in facilitating the application of the
rule of law.’
 A recurring theme in the Australian High Court’s jurisprudence on privilege is the need to protect the
‘liberty’ and ‘dignity’ of all persons, especially the ‘ordinary citizen’, the ‘unintelligent’, and the ‘ill-
informed’, in their dealings with the state.
 The privilege is a facilitative right in the sense that it provides ‘a practical guarantee of fundamental,
constitutional or human rights’ including the right to know the law and the right to legal representation.”
- Main issues with CLP:
1.What is the public policy rationale for privilege? How does privilege enable lawyers to fulfil their two
systemic roles?
2.What are the legal rules governing privilege: when does it apply, what does it do, what falls beyond its
boundaries, and how does it differ from confidentiality?
- Key requirements of a claim of challenging privilege:
 1. Under Aust law, all communications between client-lawyer are immune from compulsory disclosure
 2. Purpose of communication/document must be determined objectively
 3. Legal advice is defined broadly for the purpose of privilege
 4. For litigation privilege to apply, at common law the proceedings must be ‘adversarial’ in nature and for
there to be a ‘real prospect of litigation, as distinct from a mere possibility, but it does not have to be
more likely than not’
 5. Privilege can only be abrogated by expressed provision in statute or by necessary implication
 6. Confidential communication with third parties will attract privilege if made for dominant purpose of
litigation – but several jurisdictions abrogate this for communications with experts who may be called to
testify
 7. At common law, but not under the uniform evidence legislation, third parties will attract privilege
 8. Privilege will attach to confidential documents, whether or not communicated to a lawyer
 9.
 [...]
 21.
- Basis for protection re privilege
 Founded on rule of law
 Litigation privilege required by the right to fair trial
 Justification for both limbs of privilege founded on empirical assumption
 The merging of legal advice privilege and litigation in Australian law
- Boundaries of legal professional privilege
  Legal professional privilege belongs to the client
 Only confidential communications protected
 Facts not referable to privileged communications may not be protected
 The meaning of lawyer
o Independent legal adviser practicing
o It is sufficient but not necessary for lawyer to have a practicing certificate
 In-house lawyers
o It is not a requirement that the lawyer be independent from the client but they must be functioning
as an independent lawyer giving independent advice for a communication to be eligible for privilege
 [16.39] Meaning of legal advice includes telling clients what the law is and what should
prudently/sensibly be done in a relevant legal context
o However, advice that is commercial, administrative or policy in nature will not attract privilege
o Problems are seen in AWB Ltd v Cole
 Meaning of reasonably anticipated litigation
o In order to qualify for litigation privilege, it is necessary but not sufficient to establish that a
document/communication was made for dominant purpose of litigation
o Under the uniform evidence legislation, litigation is defined broadly
 AWB Ltd v Cole held that litigation privilege did not extend to Commissions of Inquiry even
though they had the power to compel witnesses and documents – because litigation privilege
was an aid to adversarial litigation designed to protect the location and retention of witnesses
 [16.43-48] Dominant purpose test
o Purpose of obtaining or giving legal advice or preparing for litigation
o Rationale: to facilitate access to legal advice and allow people to adequately prepare for litigation
o Availability of privilege should not affect the scope or content of such communications
o 2 critical overlapping questions of principle and practice:
 How significant (or exclusive) should the legal purpose be in order to qualify for privilege? and
 What test can give effect to this level of protection which is also capable of being readily applied
by parties, their lawyers and the courts given the sheer volume of material subject to compulsory
disclosure?
o Dominant purpose becomes a blur in corporate and governmental contexts
o Courts must decide whether it is the dominant purpose – key issues include the status of:
 (a) fact-finding exercises where one of the purposes of the investigation is to prepare for
litigation or obtain legal advice, whether conducted by insurers, companies or public bodies;
 (b) the status of conduct advice;
 (c) communications seeking multiple types of advice, especially as they apply to new forms of
legal practice; and
 (d) the status of internal corporate communications that are sent to multiple recipients including
the company lawyer. There are also questions about the meaning of ‘dominant purpose’.
- Multiple recipient communications ie. in corporate contexts
 Whose purpose counts?  via objective test
- Documents that are not communicated to a lawyer:
 No requirement for document to be physically sent to a lawyer
 But there is a caveat to documents – not all documents per se are protected, only those intended to
protect communications
- [16.77-79] Privilege protects only legitimate communications
 Not those for illegal/improper purposes
 Communications on defending oneself from a criminal charge or about consequences of breach of
contract/tort law are privileged
 The lawyer need not be party to the alleged crime or even be aware of the illegality, it is enough that the
client intends to use its communications with the lawyer for an illicit purpose
- [16.97-102] Loss of privilege – waiver
  General principle: once client has waived a privilege, it is permanently loss and cannot be reasserted
o Rationale: client cannot play fast and loose with privilege choosing to disclose when it suits them
 Conduct constituting waiver:
o By acting in a manner inconsistent with the privilege (Expense Reduction Analysts Group v Armstrong
Strategic)
o Waiver arise from the need to decide whether a conduct is inconsistent with maintenance of
confidentiality which the privilege is intended to protect (Mann v Carnell)
o S122(2) of Uniform Evidence Acts: implied waiver arise based on whether client has ‘acted in a way
that is inconsistent with the client or party objecting to the adducing of the disclosure to the lawyer’
– needs to be determined objectively
o Obtaining joint advice does not amount to a waiver of privilege (Osland v Secretary to the
Department of Justice)
o Court held that issuing the likely outcome of litigation do not amount to disclosure of the substance
of legal advice (Ampolex Ltd v Perpetual Trustee)

Seminar Notes

- There is a distinction between actual confidential information and mere confidential information  r9 ASCR
 mere confidential information may consist a combination of public knowledge and actual confidential
info entitled to legal privilege
 legal professional privilege operates as a privilege in litigation and functionally, the privilege has two
components:
o litigation, and
o advice
 reflects the evolution of society contributes to the scope of confidential information that are entitled to
legal privilege  which ultimately makes rights to privilege is more heightened
- rationale: why isn’t confidentiality enough? Why is there a secondary form of confidential info (referring to
‘merely confidential information’)?
 widening public knowledge (ie. due to advanced tech)
 when dealing with litigation, we are more focused on enforcement and legal rights and threats of legal
compulsion
o imposing compulsion on privilege: to create a situation where the client can be frank and honest and
so, client will not be at risk of being exposed and may seek to obtain proper legal advice
- to establish legal privilege  via Dominant Purpose Test in relation to the communications and/or
documents
- Nature/source of LPP (aka CLP)
- Exists as substantive common law doctrine and, latterly, ‘fundamental common law right’
 Baker v Campbell (1983) 153 CLR 52, 127 per Dawson J
 Carter v Managing Partner (1995) per McHugh J; AFP v Propend Finance (1997) 141 ALR 545 (plurality)
- Doctrine also has statutory force as a rule of evidence under the Uniform Evidence Acts
  NB primary point of difference: ss 118 and 119 of the Uniform Evidence Acts apply only to the adducing
of evidence in proceedings
 The common law doctrine applies in all other circumstances
- Note: Challenging Search warrant  rely on common law privilege over statutory privilege
 However, a statutory privilege prevails over common law privilege when –not at discovery stage of
litigation ie. pre-trial but instead when it is about proceedings
- S118 of Evidence Act: Legal Advice privilege
 Scope of advice [per Zuckerman 16.39-40]: not just what the law is but what should be done in context
(ie might include an element of ‘non-legal’ advice insofar as it is legally correct and prudent ‘as to one’s
conduct’ – advice that is purely commercial or administrative in nature is not covered
 Challenges arise when advice is given purely on commercial matters, policy issues etc that can fall outside
the legal advice privilege scope
o The court is not over-rigorous in applying that (court is flexible) – court can accept subsidiary purpose
as long as the dominant purpose is to give legal advice (ultimately)
o for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to
the client.
- S119 Litigation privilege
 We see the distinction between the advice and litigation privilege
o Advice privilege focus on communication with clients (s118), but if you (as client) or your lawyer are
passing communications to third parties (aka “another person”) then those are privileges under the
litigation privilege provided that it satisfies the dominant purpose (which is lawyer is providing
professional legal service)
o “Litigant in person” not covered??
- Loss of privilege (CLP) s122 of Evidence Act
 Usually either through abrogation of statute or waiver
o Abrogation of statute is the statute removing the privilege
o Waiver is much more important and more problematic – where the client gives up the privilege
 This shows who does the privilege belong to?  to the client, not lawyer
 As a lawyer, this is what you need to be caution of
 Waiver can be expressed or implied
 Expressed eg. by consent
 Implied waiver is inferred from the circumstances – implied waiver can arise from
words/actions that are inconsistent with the maintenance of the privilege eg. saying/doing
anything that discloses the info which is the subject of the privilege is potentially an implied
waiver
 Often related the common law ‘fairness’ test
 s 122(1) privilege does not prevent adducing of evidence with the consent of the client or party
concerned – expressed waiver
 s 122(2) “Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or
party concerned has acted in a way that is inconsistent with the client or party objecting to the
adducing of the evidence” – this address implied waiver
 s 122(3) … ‘knowing and voluntary disclosure’ of the ‘substance of the evidence’ – does this largely
exclude inadvertent disclosure from the ambit of the Act?
 Whether statutory scheme in relation to s122 means any disclosure need to be knowing and voluntary?
 now this question is put to an issue at common law in Expense Reduction Analysts v Armstrong [2013]
HCA 46
o Case of inadvertent disclosure problem  s122: inconsistency + ‘knowing and voluntary’
o Court held you can’t claim waiver on such circumstances – there are circumstances you can’t claim
waiver for privilege and thus, it was not a procedural mistake but rather this is a matter of case
management
 oCourt refers to ASCR which describes that inadvertent disclosure should not be treated in these kind
of circumstances
o Therefore, now we are at a position where we treat inadvertent disclosure should not be a basis of
claiming waiver
- Crime/Fraud ‘exception’ – s125 of Evidence Act
 The provision may provide a broader interpretation – it captures a broad range of legal wrongdoings
o “in furtherance of the commission of a fraud or an offence or the commission of an act that renders
a person liable to a civil penalty”
 But narrow scope of interpretation for “in furtherance of a deliberate abuse of a power”
 AWB v Cole (No 5) [2005] FCA 1234: 1

19. CONFIDENTIAL INFORMATION

The duty to safeguard confidential information

One of the most well-known and fundamental features of the lawyer-client relationship is the lawyer’s strict
duty to safeguard confidential information communicated by clients. However, there are some limits and some
exceptions.
This seminar explores the rationale for the duty of confidentiality. We will also consider:
 the sources that give rise to the duty
 the scope of the duty
 the duty’s limits and exceptions and
 whether the duty of confidentiality should be reformed

Scenario: Lenny’s Story

 Administration of justice should reflect getting the accurate discovery of information disclosed
 However, to not maintaining the privilege in this case should be treated as an exception
 Miscarriages of justice
o Alton Logan, US case; where a person faces imprisonment for a crime he didn’t commit and the
lawyers became aware during the trial but because they were associated with the actual
perpetrators, they didn’t do anything about it
 Ordinary morality – the role of morality around confidentiality
o Harm may arise in the role of morality
 ie. harm caused by an individual lawyer to the client and maybe that will affect the overarching
harm to the client’s legal claim
 Relative harm – ie. to innocent third party
 “Sanctity” around confidentiality  (this is framed as a public interest argument)
o Keeping secrets at some level is a social good but there are some secrets that are not good to keep.
Thus, there is no absolute argument
o Are we talking about confidentiality good in itself in moral terms? Or is it instrumentally
consequentially good – as in is it good based on what we do with it?

Required Reading
• Solicitors’ Conduct Rules 2015, rule 9 (LMS)

Seminar notes:
- Solicitors’ Conduct Rules r9 on confidentiality
- Exception rule  r9.2
 R9.2.1: If the client gives you permission, you can disclose
 R9.2.2: permitted by law to disclose
  R9.2.3: If you need to disclose because you’re in legal/ethical liability, then you may be permitted to do
limited disclosure
 R9.2.4: disclosing for the sole purpose of avoiding the probable commission of a serious criminal offence
 R9.2.5: to disclose for the purpose of preventing imminent serious physical harm to the client or another
person
o If the evidence of threat to physical harm is there, it might work
o It excludes past physical harm
o No reference to psychological harm or financial harm and other non-physical harms
 So, what about your duty as a lawyer, can you disclose?  generally, no
 R9.2.6: the info is disclosed to the insurer of the solicitor, law practice or associated entity
- Problem with the rules – it doesn’t give you a solution to when you as a solicitor are placed in the difficult
situations
- Note: when your main issue is Confidentiality, always ask if Privilege would apply too? But not all cases,
privilege would be a problem just because there is a confidentiality issue

G E Dal Pont, Lawyers’ Professional Responsibility, 6th ed, 2016) [10.05]-[10.80] (SM)
- Arises from a duty on lawyer to maintain inviolate client’s confidence
- (471 SM) Rationale: to encourage full and frank disclosure between lawyer/client
- Source of duty: Stems from contract law and equity  some say also from inherent fiduciary relationship
 Implied in the wording of the contract  all info connected with the retainer are treated confidential
 In equity: the info is confidential if it is capable of meeting the legal test of confidentiality
o Whether the info is public knowledge or for a limited purpose
o Equity secures broader protection for confidentiality than contract
o But duty of confidentiality may expire when info loses its confidentiality or after termination of
retainer or not at all
- (472 SM) duty of confidentiality can be found in professional rules but they should not be taken entirely at
face value, they merely emphasise the importance of the duty
 Not all info connected with the retainer meets the legal test (equity of confidentiality)
- Duration of duty
 Cannot be ousted by termination of retainer, death or reduced by a duty owed to another client
 In fact, lawyers can assume duty owed to third parties
- Differences Confidentiality v CLP (aka LP Privilege)
 Privilege is premised upon confidentiality  privilege communication is a subset of confidential info
 Privilege info is protected from compulsory disclosure unless ousted by exceptional statutes
 But confidential info that is non-privilege may not be protected from compulsory disclosure
- Limitations of confidentiality duty
 By no means an absolute duty
 They may be a justified disclosure of confidential info – but the disclosure is in a limited form and to a
limited audience determined by what the lawyer reasonably believes is necessary
- Client authorisation
 (P473 SM) client may authorize lawyer to disclose, elect to waive or modify the obligation
- Inferred client authorisation for disclosure incidental to conduct of the retainer can be inferred, no need be
expressed
 But if lawyer is uncertain about the authority to disclose info, should secure express authority from client
- Inferred client authorisation for disclosure to others within the firm – because retainer is ordinarily with the
firm not the individual lawyer
 Except for info clearly confided personally and exclusively cannot be perceive as an implied authority to
disclose
- Disclosure compelled by law
 (474 SM) confidentiality can be ousted by statute
 o If Parliament decrees that the public interest in access to info overrides client’s interest in preserving
confidentiality – eg. Anti-Money Laundering and Counter Terrorism Financing Act 2006
 But the law does not affect legal professional privilege (only exceptional statutes can compel
disclosure from privileged communications)

21. ALLOCATING THE COST OF LITIGATION

Who should bear the cost of completed litigation?

Zuckerman observes, ‘the subject of costs, which would deserve only modest attention in a well-balanced
system, requires extensive treatment in Australia’ (at [28.1])

Litigation is often incredibly costly—the legal costs sometimes exceed the amount in dispute. Who should pay
for the costs of litigation?
Topics
 The overarching principles that guide costs
 The source of the court’s power to award costs
 The types of cost orders
o Standard or indemnity
o Orders for or against non-parties
 Offers of Compromise and Calderbank Offers

Required Reading
Read and understand
 Supreme Court Rules 2015 (Vic), Order 63 (browse and familiarise) (LMS)
 Supreme Court Rules 2015 (Vic), Rules 26.01-26.05, 26.07.1, 26.08-26.08.1 (LMS)
 Adrian Zuckerman et al, Zuckerman on Australian Civil Procedure (LexisNexis Butterworths, 2018) (TB)
o [28.1]-[28.32], [28.49]-[28.58], [28.75]-[28.80], [28.86]-[28.87], [28.95]-[28.102], [28.111]-[28.151],
[28.205]-[28.220] (on the awarding of costs)
o [27.1]-[27.2], [27.20]-[27.75], [27.113]-[27.115] (on Calderbank offers and Offers under the rules)

Seminar Notes + Chap 28 Costs

- Intro
 (Pg1089) Zuckerman [28.1] The subject of costs, which would deserve only modest attention in a well-
balanced system, requires extensive treatment in Australia. Far from being incidental to the substantive
issues in civil proceedings, the various aspects of litigation costs occupy a central place in the Australian
administration of civil justice. Issues concerning who should bear litigation costs, and their calculation,
can themselves give rise to litigation, which is liable occasionally to be more extensive and costly than the
litigation over the underlying dispute. Despite efforts of rule-makers to introduce procedural reforms
aimed at reducing the cost of civil proceedings the cost of litigation in Australia remains high, and is
prohibitive for many. In 2014, the Australian civil justice system was ranked by the World Justice Project
as amongst the worst performers in the OECD on the criterion of ‘accessibility and affordability’. It is
therefore necessary to preface this subject by saying something about the phenomenon of high litigation
costs.
 The effects of that the costs may have on the amount of compensation that a party receives  real issue:
why? We consider the market of legal service
o The corporate culture driven to maximize profitability ie. billing practices and in-house counsels
o As lawyers, we have one interest  profit maximization because the continuance of our legal service
business depends on it
- Why are legal services costly?
 Zuckerman [28.3] Firstly, it is because of the way the market for legal services in Australia operates
o you might want to link this back to our discussions about the business of law and billing practices
 The root of the problem is the nature of the legal services as market-based, credence goods – a product
we have to take largely on trust because we (as consumers) don’t have the expertise to evaluate the
nature and quality of what we are buying  the Economics of Litigation
o This means there is a fundamental info asymmetry between lawyers and most clients – an
particularly the least sophisticated
 Added to this is this inherent conflict of interest that we discussed regarding charging – particularly
hourly billing which we know is at best only tangentially related to client outcomes. This can be described
as a basic principal/agent problem or ‘moral hazard’ ie. the principal (client) is obliged to rely on the
agent (lawyer) to act on her behalf in circumstances where there are incentives for the agent to prioritise
her interests over those of the client
- The Economics of Litigation (this sits at the root of problem for litigation)
 General rule for costs: to be “fair and reasonable”  very vague and has broad interpretation, easily
manipulated by the market
o in practice, costs are based on what the market will allow
 But litigation services = credence good, so information asymmetry (irregularity) limits capacity of market
to economically self-regulate (eg. of ‘market failure’)
 Litigation costs are unpredictable and (relatively) poorly correlated to outcomes
o eg. difficult for lawyers to give an exact cost for their service because they don’t know what the other
side (other party) have for litigation
o Litigation is a ‘zero sum game’, as there is someone that wins and someone loses
 How costs have been allocated in practice:
o Normal cost models allocate most financial risk to the consumer
o Normal cost models do not penalize lawyers for inefficiency, over-servicing or stretching out litigation
(moral hazard)
o Lawyer regulation does little to reduce the underlying principal/agent problem (flexibility of ‘fair and
reasonable standard’)
o Some of these risks may be moderated by conditional/contingent fee mechanisms, though as we
have seen those may create other – perverse – incentives regarding lawyer behaviour to enable
income maximization and/or risk-shifting
 Costs reform on the whole has sought to modify behaviour in litigation thus far to enhance efficiency and
proportionality of costs
o eg. CPA overarching obligations in respect of cost, delay, misuse of court procedures and
unwillingness to seek settlement.
o Reforms to pleadings and discovery rules have also sought to reduce costs, but these have not
substantially removed the basic problem, and in some respects the civil procedural rules around costs
specifically may exacerbate the problem
 How has the system tried to avoid the problem of cost: through Alternative Dispute Resolution,
proportionality (ie. overarching obligations; case management to ensure the court manage the process
more to prevent lawyers from stretching out litigation; reforms to discovery rules)
o Nonetheless, the systemic problems are still present
o For cost to be payable, we need an order from the court  cost allocation is a formal process 
needing to consider cost allocation which requires a very specific decision according to principles and
according to circumstances of each case
- Costs and overarching principles
 Zuckerman p1091: The allocation of costs between parties to litigation continues to be governed
substantially by the traditional indemnity principle, which has three limbs.
 First, successful party is ordinarily entitled to recover from the unsuccessful party
o We operate on a “cost shifting system”: as the losing party pays for both their own and the winner’s
litigation costs
o The “good news”: the liability of losing party is limited by the second and third principle (below) –
there will be a scale of fees to regulate costs
 o But the “bad news” for the winning party: the amount that the winner recovers may be as low as 60-
70% of their actual cost
 Second, the receiving party is not entitled to claim more costs than it has actually incurred
 Third, the receiving party is only entitled to cover costs that were reasonably incurred and reasonable in
amount
 However, for costs to be payable, an order of the court must be made – cost orders are made separately
from substantive relief, and may be sought during (eg. costs in respect of application for interim relief) as
well as at the end of court proceedings
o Regime governed by the ‘indemnity principle’ (NB not to be confused with ‘indemnity costs’, later) ie
the idea that the obligation of the loser is it indemnify the winner.
o As a basic principle this makes some sense in terms of risk allocation
o It should disincentivize parties from running a weak case, though of course that may be less of a
disincentive to those with deep pockets and large grudges. Risk appetite like ‘wealth’ is not evenly
distributed
- The court’s power to award costs – a broad discretion
 Zuckerman P1093: The court has power to determine
o Whether or not to order a payment of costs (where it declines to make an order, each party will bear
its own costs)
o Who should pay costs (including a third party)
o The amount of costs to be paid
o The time of payment
 Supreme Court Act 1986
o S24: costs to be in the discretion of Court
 (1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and
incidental to all matters in the Court including the administration of estates and trusts, is in the
discretion of the Court and the Court has full power to determine by whom and to what extent
the costs are to be paid
 Supreme Court Rules
o R62.02: General powers of Court
 The power and discretion of the Court as to costs under s24 of the Supreme Court Act shall be
exercised subject to and in accordance with this order
- “Costs follow the event”
 What does it mean?
 What are the justifications?
o A party not be out of pocket for successfully seeking to vindicate rights
o Deters unmeritorious claims/defences
 Zuckerman [28.49-28.51]
o Eg. when a loser pays winner’s costs (and usually pay their own as well)
o Where a case is settled, parties may (ie. generally will) make their own agreement as to costs, but if
the parties can’t agree, the court has the power to determine. However, the rules in such cases vary
from the normal “costs follow the event” principle depending upon whether the claim has been
abandoned, discontinued or settled (chiefly because there has been no ‘event’, ie. trial, upon which
the costs fall to be determined) – different principles apply in each case (but you’re not expected to
know this)
- High Court in De L v Director-General, NSW Dept of Community Services (1997) 190 CLR 207, 221
 The power to provide costs is an important one designed to ensure that a court may protect a successful
party against the substantial burden of costs which could otherwise render its success nugatory
 The crushing burden of costs might be a disincentive to parties prosecuting just and lawful arguments in
this Court
- Policy issue: Should costs be awarded on a ‘winner takes all’ basis, or apportioned on the basis of success on
particular discrete issues?
  ‘Winner takes all’ is the starting step  consider ‘apportionment’
 This issue is discussed in Zuckerman [28.52-28.58] – court has always had power of apportionment (part
of wide discretion), but in most instances the tendency has been, historically at least to use it sparingly,
notwithstanding obvious unfairness. Zuckerman argues modern practice moving towards apportionment,
but critical issue tends to be severability of the various claims. The latter approach is more formally
adopted in some other jurisdictions (eg. UK moving to that direction more than Aust), not left to judicial
discretion – there are some judicial discretion but not so much
 Need generally to distinguish between two issues:
(1) Where the parties (usually the P) have mixed success on their own claims (remember also other side
of this, that principle of finality encourages parties to address all issues – now potentially penalized for so
doing?)
o Here, whilst costs may be apportioned between issues where a party has succeeded only on some
issues, there are many cases where that is not deemed an appropriate course
o The principle in Cretazzo v Lombardi (1975) 13 SASR 4 at 16, cited by Zuckerman at [28.53] still holds
to a large degree. At the same time, as Zuckerman acknowledges there are signs that courts are more
willing to apportion, but the result of that is that it is hard to see practice as consistent in this area
o In sum, the relevant ‘principles’ (such as they are) were summarized by the VSCA in Chen v Chen (No
2) [2009] VSCA 233 at [10] as follows:
“3. Where there is multiplicity of issues and mixed success has been enjoyed by the parties, a
court may take a pragmatic approach in framing the order for costs, taking into consideration the
success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it
is reflected in the successful party being awarded a proportion of its cost but not the full amount.
4. A court may, when fixing costs in a claim where there has been mixed success, take into
account complications which it considers will arise in the taxation of costs, as part of its
consideration of the overall interests of justice.”
o The relevant principles in Chen v Chen (2009 Vic case)
 Apportionment is a legitimate approach but it also recognized that it is problematic because cost
is not easy to apportion  rather the cost apportionment may be done arbitrarily
 Pragmatic constraint of apportionment  they tend to be a case-by-case basis
o Separability of issues (and costs) a key consideration – Zuckerman [28.69] and Bostik – it recognizes
the practical difficulties of allocating specific costs to one or other claim, when the claims may in
reality overlap and have been worked on to some extent collectively. Note this is of course a
pragmatic rather than principled challenge to apportionment
(2) Costs in respect of cross-claims:
o Question: Are the costs of the cross-claim to be awarded separately or are the costs of the whole
proceeding to be aggregated so that one order is made in respect of the lot?
 “Where a claim and cross-claim raise essentially different issues and plaintiff succeeds in the
claim and the defendant on the cross-claim, there should generally be separate judgements on
the claim and the cross-claim with the plaintiff having the costs of the claim and the defendant
having the costs of the cross-claim, although a special order may be made if the issues are
interlocked: Chell Engineering Ltd v Unit Tool & Engineering Co Ltd [1950] 1 All ER 378; Godden v
Alford [1960] WAR 235 at 236-237... On the other hand, the result of an appeal and cross-appeal
were aggregated where there was an overlap between them in Polwood Pty Ltd v Foxworth (No
2) [2008] FCAFC 168 at [12]-[13], where the Full Court of the Federal Court pointed to the
undesirability of potentially separate taxation of the costs of an appeal and cross-appeal giving
rise to disputes as to whether a particular attendance was a cost in one or the other and ordered
payment of a percentage of costs of the appeal and cross-appeal”
 Per Black J in Barescape Pty Limited as trustee for the V’s Family Trust v Bacchus Holdings
Pty Limited as trustee for the Bacchus Holdings Trust (No 12) [2012] NSWSC 1591
- Standard basis – the usual approach:
 Standard basis aka ‘Party/Party costs’  Order 63.30 Supreme Court Rules 2015:
 ‘On a taxation on the standard basis, all costs reasonably incurred and of reasonable amount shall be
allowed’
o Scale fee is only the starting point of what is reasonable fees, usually corporate law firms are above
the standard scale fees
 Indemnity costs – are only as exceptions
o They intend to be punitive
- Standard Costs
 = costs awarded on this basis only provide a partial indemnity for that which the litigant has actually paid
the solicitor
 Reid v Robt Nettleford per Gibson – cited in Zuckerman [28.96]
o “Costs as between party and party are an indemnity, but a qualified indemnity only, which does not
reimburse to the successful party all of the expenditure incurred by him but only such as is necessary
or proper to enable that party to conduct litigation”  “qualified indemnity” = partial indemnity
o Purpose not to compensate but only to recover costs strictly necessary to conduct litigation: Donohoe
v Britz – Zuckerman [28.96]
 It is a general rule that, as between party and party, the luxuries of litigation must be paid for by
those who indulge in them, whilst the necessaries (qualified/partial indemnity) only are to be
paid by the losing side
 All parties will have to pay costs simply for participating in litigation
 Part of the problem is the extent to which the scale costs have fallen behind ‘real’ (fair and reasonable)
costs charged – indemnity element may be as low as 70% or even 60% of actual costs
- Indemnity Costs – departing from the ordinary/standard costs (the usual approach)
 a party may be obliged to pay costs on an indemnity basis
 it is intended to provide a complete indemnity
 all costs incurred are prima facie allowable
o burden shift to the paying party to establish that the costs are either unreasonably incurred or
unreasonable in amount
 Order 63.30.1 Supreme Court Rules 2015: Indemnity basis
(1) Subject to paragraph (2), on a taxation on the indemnity basis all costs shall be allowed except in so
far as they are of an unreasonable amount or have been unreasonably incurred.
(2) Any doubt which the Costs Court may have as to whether the costs were unreasonably incurred or
were unreasonable in amount shall be resolved in favour of the party to whom the costs are payable.
- Costs as a Case Management Tool
 CPA 2010 (Vic): Overarching Obligations
o Purpose is to facilitate “cost effective” resolution
o Court may give effect to purpose in exercise of powers
o OO aim to make process more efficient and thus, reducing costs but s24 specifically requires that a
person ensures costs are reasonable and proportionate
 Sanctions: s28(2) CPA in exercising discretion as to costs court may take into account any contravention
of OO
 S29: specific orders
 Order 63.23 Supreme Court Rules: Where solicitor has caused costs to be incurred improperly or without
reasonable cause or to be wasted by failure to act with reasonable competence and expedition, Court
may:
o Disallow costs between solicitor and client (solicitor not to charge client or solicitor to repay money
client has already paid to solicitor)
o Order solicitor to pay costs which client has paid to another party
o Order solicitor to pay costs payable by any other party (other than his/her client)
 Yarra Australia v Oswal [2013] VSCA 337: court exercised its power under s 29(2)(b) CPA as to whether
any party had contravened their overarching obligations by failing to use reasonable endeavours to
ensure that costs incurred were reasonable and proportionate
 o Facts: 2700 pages and 11 barristers for an interlocutory application
o VSCA: material filed was excessive; solicitor had ordered to indemnify clients for half of respondents’
costs and only allowed to charge their clients for half of costs incurred in preparing the excessive
material
 The other mechanisms where costs act as a case management tool: Calderbank letters and Offers of
compromise  both are ways for settlements
o Significant because they have financial and hence tactical impacts on settlement decisions
 This effect is achieved by creating adverse cost penalties where parties unreasonably reject a
settlement amount
 This has the merit of protecting the offeror, to some extent, from additional costs arising from
the rejection of their offer, but it can also put significant pressure on the other party, and may be
used tactically to force them to withdraw from litigation
 Where a dispute is about quantum (meruit), this has obvious merit as a system, but what if
liability really is genuinely disputed, or there is also a point of principle at stake?
 Should litigants be pressured by the other side and discouraged from prusing their rights in
court? – think about these issues as we look at the process
 Zuckerman P1049-1050: Calderbank letter (aka an offer to settle under the rules) has to be headed
‘without prejudice’ – thus, it can’t be use in substantive ways in litigation
o Without prejudice offer to the other party which can be shown to the Court on the question of costs
after liability determined.
 “without prejudice save as to costs”
 Letter should state the time period in which the offer will remain open
 Offer in the letter must be clear and precise.
o Factor to take into account when assessing costs at trial – whether rejection of offer was
unreasonable
o Also interesting as an exception to privilege – courts historically unable to consider informal offers to
settle because such offers were confidential and ‘without prejudice’ and therefore inadmissible as
evidence – but meant there was no added financial incentive (ie over and above the savings it not
going to trial) on the parties to make or respond to reasonable settlement offers. Calderbank was a
work-around to this problem – it permitted admissibility for the purposes of assessing costs, but not
in respect of any other substantive issue (eg not an admission as to value of claim)
 Former Offers of Compromise – Supreme Court Rules Order26
o its affect is different from Calderbank – has a lot more formalities
o Procedure to allow a party to make an offer with costs consequences for the period after the offer if
offer is not accepted and party refusing offer does not better the offer at trial
o Offer may be made up to judgment.
o Consequences: complex but also more pre-determined (they spelt it out to you)  order 26.08
o Order 26 Supreme Court Rules: Offers of compromise and offers to compromise on appeal
 Must be in writing
 Must state offer is made under Rule
 Allow not less than 14 days for acceptance
 May only disclose offer to Court after question of liability determined
 Complicated Order but essentially works on the basis of whether the P “beats” the offer at trial,
so should have accepted the offer when it was made and saved everyone time and money
o Order 26.08
 If offer accepted costs dealt with as per offer or by order of Court
 If offer made by P, not accepted by D and P equals or does better than offer at trial
 Costs of P paid by D on “ordinarily applicable” basis up to second business day after offer
served and indemnity costs thereafter (except personal injury)
 If offer made by D, not accepted by P and P obtains judgement less than terms of offer
 D pay P costs on “ordinarily applicable” basis up to second business day after offer served
  After that date, P says D’s costs on “ordinarily applicable” basis
 If offer made by D, P unreasonably fails to accept the offer and does not succeed at trial
 D entitled to costs on “ordinarily applicable” basis up to second business day after offer
made
 After that date P pays D’s costs on indemnity basis
 A rule of thumb, when in doubt  consider Offers of Compromise

22. THE DUTY TO OBEY AND UPHOLD THE LAW

Part 1: How to ensure that lawyers are not improperly involved in illegal conduct
As we saw in previous classes, lawyers owe a paramount duty to the administration of justice. It is a broad duty
that has a range of implications in different contexts. This seminar will focus on one implication: the lawyer’s
obligation to obey and uphold the law.

At first it might be difficult to see how the obligation to obey and uphold the law could give rise to difficulties:
surely, lawyers are best placed to know how to obey the law and should be unequivocally committed to doing
so?

Prepare for discussion

 G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, 2016) [19.05-19.25], [19.50-19.80] (SM)

Seminar Notes
- Duty to uphold the law?
 Not unique to lawyers – but may contradict with their duty to the court and ethical responsibilities
- Dal Pont
- [19.10] if a lawyer becomes aware that a client is engaging in, or proposes to engage in, unlawful conduct,
the lawyer should counsel the client against it and eschew any involvement in that conduct, whether by
assisting or being see to condone that activity
- “this may require the lawyer to refuse to perform an act that the client directs, and may even require the
lawyer to terminate the retainer”
- [19.10] “No implication of involvement by a lawyer in a client’s misconduct ordinarily arises merely from an
allegation that the lawyer performed legal work related to the client’s activities”
- What if the client still proceeds to act against the statutory prohibition (illegal activity) but was prepared to
pay the penalty attached to it? Does that make the lawyer also culpable?
- [19.50] advice is given in good faith, despite lawyer not liking the consequence
 “A lawyer may advise a client to engage in conduct the lawyer considers may be illegal where this advice
is given in good faith to test the validity or scope of the law, the client is informed of the consequences
and likelihood of the conduct being found to be illegal, and is given complete freedom of choice to
whether or not so to act”
o In other words, in any proposed course of conduct the legal status of which is unclear, the client
should be fully apprised of the risk and consequences of illegality, and permitted to choose whether
or not to pursue that course
o A failure to so apprise the client may amount to negligence
o Hence, the lawyer should caveat any such advice by disclosing the risk and advising that her or his
opinion may not necessarily be correct
- [19.70] “If a client wishes to avail itself of a tax minimization route that is legal [or arguably legal], it is the
duty of the legal adviser to assist in achieving the desired result if retained to do so.
- A failure to advise clients as to how to legally minimize their tax liability may, where that advise comes
within the scope of the retainer, constitute negligence.”
- [19.50] “A lawyer must not tender advice to a client that he or she knows or has reasonable grounds to
believe is being requested to advance an illegal purpose”
 Where the client’s instructions are, for this reason, such as to prevent the proper performance of the
lawyer’s duties, he/she should cease to act
 Critically, a lawyer must not advise a client as to the ways in which an unlawful purpose may be achieved
or concealed, propose methods of breaking the law, irrespective of the prospects or otherwise of the
client being caught or prosecuted, or advise or assist clients to behave contrary to an order of the court”
- [19.25] “A ruling of the Law Society of the Australian Capital Territory suggests that if a lawyer is requested
to act in a matter involving premises, which he/she has heard unsubstantiated rumors are being, or are
about to be, used for illegal or unlawful purposes, the lawyer is entitled to disregard those rumours”
 The ruling adds that the lawyer remains entitled to accept instructions to act in the matter even if, by
virtue of the rumours, he or she forms the belief that the premises were being used for such a purpose.
 However, a lawyer who knows or receives instructions [from their client] that the premises are being
used for an illegal or unlawful purpose cannot act so as to further that purpose. For example, the lawyer
must not prepare a lease of those premises for use for an illegal or unlawful purpose.”
 Reason for minimal moral dialogue  structure of commercial law firms (where they don’t see the need
of moral dimensions to their work)
- [19.15] “If he or she [the lawyer] has reasonable grounds to doubt a client’s bona fides, inquiries should be
made. For example, where money is handed to a lawyer in circumstances that raise the suspicion that it
stems from criminal activity, the lawyer should question the client regarding its source.”
- [19.05] (Whether we as lawyers have) An unqualified duty to uphold the law?
 “Although lawyers are not precluded from criticising the law – they are, after all, well qualified to criticise
the law and restricting its critical assessment would hamper law reform – they must not do so in a
manner that undermines the law or public confidence in it”.
 How far, to what extent, can lawyers make critique on the law?
o Echoes perhaps of Re B (the Wendy Bacon case) in seminar 7 (admission) and that case focuses on
“the profession of ideas which were incompatible with being a barrister”
o In support of this proposition, Dal Pont cites a decision of Lord Atkin in a 1936 Privy Council appeal
from a finding of contempt of court in Trinidad and Tobago.
 Lord Atkin in Trinidad & Tobago: ““whether the authority and position of an individual Judge or
the due administration of justice is concerned, no wrong is committed by any member of the
public who exercises the ordinary right of criticising in good faith in private or public the public
act done in the seat of justice. The path of criticism is a public way: the wrong headed are
permitted to err therein: provided that members of the public abstain from imputing improper
motives to those taking part in the administration of justice, and are genuinely exercising a right
of criticism and not acting in malice or attempting to impair the administration of justice”
 But what Dal Pont did not appreciate:
 And that in applying the law the Board will not lose sight of local conditions is made clear in
the judgment in McLeod v. St. Aubyn (supra) where Lord Morris after saying that committals
for contempt of Court by scandalising the Court itself had become obsolete in this country,
an observation sadly disproved the next year in the case last cited, proceeds (p. 561)
 “Courts are satisfied to leave to public opinion attacks or comments derogatory or
scandalous to them. But it must be considered that in small colonies, consisting principally
of coloured populations, the enforcement in proper cases of committal for contempt of
Court for attacks on the Court may be absolutely necessary to preserve in such a community
the dignity of and respect for the Court.”

Part 2: Upholding colonial law

In this part of the seminar, we will reflect on the colonial character of the Anglo-Australian legal system.
Required Reading
 Fiona McLeod SC, ‘Call for urgent response to Indigenous prison crisis’, Law Institute Journal (1 May 2017)
(SM)

- Hon. Michael Kirby, ‘The Rule of Law Beyond the Law of Rules’ (SM)
 Pg19: “But the instances show that fearless maintenance of the law and faithful observance of its rules
and procedures by uncorrupted courts are not, of themselves, a sufficient guarantee of a just and fair
society or even of just and fair outcomes in particular controversies."
 Pg24: “the practical limitations listed above are reasons enough to recognise that the rule of law is, in the
end, only productive of good governance for the people, if the law that is enforced is just, conformable
with universal human rights and susceptible to consistent reform, modernisation and simplification.”
o Substantive content to the Rule of Law – that is dependent on lawyers has parallel with David Luban
 About substance, not the form
o How much does the rule of law do in practice and who does that depend on?  essentially, the
substantive content to the ROL depends on the lawyers
o Parallel between Kirby and David Luban (2007): lawyers act as “architects of social structure” and
points to a (messy) baseline connection between the ROL and both the law’s and the lawyer’s role in
maintaining human dignity.
o But to what extent are lawyers maintaining human dignity?  possible challenge for corporate
lawyers
- Irene Watson, ‘Buried Alive’ (2002) 13 Law and Critique 253 (SM)
 Irene Watson p1 [501] on Australia’s history: “I write as a survivor of terra nullius, at a time when the
Australian state persists with the burial of my living being….”
 But the colonialism of even the recent past (and present) has remained fairly invisible.
 Only recently have non-indigenous people begun to comprehend the brutality and scale of the
colonial project in Australia.
 For eg. it was recently reported that there have been as many as 500 massacres of Aboriginal and
Torres Strait Islander peoples in Australia... The estimated death toll from those incidents is
about 6,200 Aboriginal and Torres Strait Islander peoples and fewer than 100 colonists, with an
average of 25 Indigenous people killed in every massacre.
 The Enemy (Watson, 262-3 [510-11]):
o We were known as the ‘myall’ blackfellers, living outside the settled sovereignty of the crown; the
‘unsettled’, and open frontier people who, like the kungari – the black swan – were vulnerable to
annihilation….
o ‘Becoming’ British was one of the first of many lies they layered upon our black and naked bodies….
So why were the common law rights of indigenous peoples – the right to land ownership and the
fundamental human right to life – not protected…. Under what authority did the Advocate-General
act when he authorised the hanging of members of the Milmendjeri? And why when the crown later
disassociated itself from the action taken by the Advocate-General was he not charged for murder?
These are questions, not yet answered.
 At law it also implies legal Exclusion (1)
 Watson 263 [511] “The power of the state to exclude or to make invisible is a universal
phenomenon experienced by other colonised peoples”
 Watson 259 [507] “[In Mabo] the court did not consider the question: what constitutes the
sovereignty of the Australian state… Instead the court decided the question was non-
justiciable…, thereby imposing its own limit on how far we can safely live without the threat
of violence and death while law continues its being before and beyond a claimed
sovereignty…. Mabo (No 2) created an illusion of doing justice, while also justifying and
expanding the muldarbi, into a new form – and life – in its power of extinguishment”
 Contrast: in Mabo, Justice Brennan preferred a sanitizing metaphor: native title had largely
been ‘washed away by a tide of history’. Quoted in Watson 259
  Exclusion (2): Irene Watson suggests colonialism proceeds not by extra-legal means, but under
the guise of ROL. If that is so, then lawyers need to pay particular attention to where they stand
in relation to the colonial project.
 Because most of the law we deal with are colonial law so it’s hard to be see the inclusion of
Indigenous law
 Facts that show there is a cultural exclusion: “In 2015, the Indigenous population in Australia
was approximately 729,000 people. In that year, there were 9,885 Indigenous adult
prisoners. That’s an imprisonment rate of roughly 1,356 adults per 100,000 of the total
Indigenous Australian population.
 So, [Noel] Pearson’s statement that Indigenous Australians are “the most incarcerated
people on the planet Earth” is correct if considering Indigenous Australian incarceration
rates alongside incarceration rates in countries listed by the World Prison Brief.”
o Kirby highlights some of the issues (pg 26-27)  do we as lawyers need to adopt a cautious
approach to that suggested by Dal Pont?
 Kirby pg 26-27: “Just as there was no doubt on the laws that enforced apartheid in South Africa,
anti-miscegenation in the United States and religious disqualifications from voting or holding
public office in earlier Britain – (the Anglo-Saxon law regime). The rule of law had nothing
protective to say, as such, about the burdens imposed in these ways on minorities (or in the case
of South Africa, on the majority racial group). On the contrary, the rules of the law, as such,
tended to enforce inequality. They thereby gave prejudice. and unequal treatment a kind of
legitimacy and respect. This was certainly the case with the White Australia laws in Australia well
into the 1960s. Only gradually were they dismantled, together with laws against Aboriginal
Australians”
 Kirby pg27: “The rule of law, in the sense of the letter of the law, is not, therefore, enough.
Lawyers must be concerned with the content of the law and the content of the procedures and
institutions that deliver law to society. Above all, lawyers must be ever vigilant to see new truths
(often revealed by scientific research) which earlier generations did not perceive. This is why the
rule of law means more than obedience to a law that exists in the books. We can never ignore
our duty as lawyers, and as citizens and human beings, to ask whether the law so appearing is
contrary to universal human rights”
o In sum, is there unqualified duty to uphold the law?
 Dal Pont [19.05]: “Although lawyers are not precluded from criticising the law – they are, after
all, well qualified to criticise the law and restricting its critical assessment would hamper law
reform – they must not do so in a manner that undermines the law or public confidence in it”.
 David Luban (Legal Ethics and Human Dignity, 2007, 296-7): “the need to believe in our own
righteousness runs deep. One possible antidote… [is] a stance of perpetual doubt towards one’s
own pretensions as well as the pretensions of others… of questioning one’s own moral beliefs, of
scrutinizing one’s own behaviour – “Know thyself!” – with a certain ruthless irony.”
o Lead to the concern of: What has the legal/moral integrity stand with unjust law?

The lawyer and the “paramount duty” to “truth and justice”

Rees v Bailey  use the facts for issue spotting, and then look at how those key issues are treated by the
court.
Rees v Bailey
Facts:
- The appellant, [Rees,] a plumber, attended the premises of his friend, Barry Phillips, to help him
with the installation of some down pipes. Phillips, an inspector employed by WorkCover, had
placed an extension ladder manufactured by the respondent [Bailey] in an over extended position
against the side of the house for the use of the appellant. As the appellant was standing on the
ladder, it collapsed and he sustained injuries. It was not in dispute that the ladder collapsed
 because it was in an over-extended position. The appellant claimed that the ladder could be easily
over-extended because it was defectively designed.
- The respondent commenced third party proceedings seeking contribution from Phillips for any
sum which the appellant might recover against it on the basis that Phillips had been negligent - by
providing the extension ladder to the appellant when it was not in a safe condition and by over-
extending it when setting it up for use by the appellant.

Contentions/Submissions:
- 9 The appellant alleged that the ladder was negligently designed as it could be easily over-
extended beyond the safety stops; and that in an over-extended position the support brackets
were not strong enough. He also alleged that there were no instructions or warnings as to the
maximum distance to which the ladder ought to be extended.
- 10 The respondent denied that there was any defect in design or any need to warn users. In the
alternative, it alleged that the appellant was guilty of contributory negligence and pleaded that the
appellant knew or ought to have known at the time that he ascended the ladder that it had been
over-extended. But the general tenor of the cross-examination of the appellant was confined to
alleging the appellant ought to have known - not that he knew - that the ladder was in an over-
extended position when he ascended it.
- 11 Ultimately the outcome of the trial, as between plaintiff and defendant turned on the allegation
that the design permitted the ladder to be over-extended. The evidence was to the effect that the
brackets were strong enough except if the ladder was over-extended. There was no occasion to
warn or inform users if the critical design defect did not exist. […]
- 13 […] Thus, Phillips’ account that the ladder, from the time of its purchase, had been (as it turned
out) easily over-extended without hindrance was the subject of challenge by the respondent. The
appeal focussed upon the manner in which counsel for the respondent at trial had sought to
undermine that account.

Trial:
- 4 Following a 12-day trial the jury returned a verdict finding that there was no negligence on the
part of the respondent that was a cause of the appellant’s injuries. After the discharge of the jury,
the respondent moved for judgment in accordance with the jury’s verdict. As questions arose as to
the form of order which should be made in relation to the costs of the trial, the proceedings were
further adjourned without judgment being entered.
- On the resumption of the hearing, six days’ later, counsel for the appellant made an application
that judgment not be entered and that the trial judge pursuant to Rule 47.02(3) of the Supreme
Court (Civil) Rules should direct a trial without jury and determine the case on the basis of all of
the evidence that had been led in the trial. The application was founded upon the alleged
misconduct of senior counsel for the respondent at the trial, which it was said had ‘so poisoned
the well of justice’ that the appellant ‘did not receive a fair trial’.

Appeal:
- 14 All of the grounds which were pursued rested upon the appellant’s assertion that the trial had
miscarried as a result of the misconduct of senior counsel for the respondent. Under cover of
these grounds the appellant provided particulars of counsel’s conduct which it was submitted had
deprived him of a fair trial. Discrete complaint was made about the style and content of numerous
aspects of counsel’s cross examination, that he made serious allegations of impropriety against
the appellant without foundation, and that he introduced extraneous and prejudicial matters in
the course of his closing address.

Standards – for permissible advocacy by solicitor at trial:

- 16 The respondent relied upon the adage that the common law jurisdiction is a robust one in
which counsel are given considerable latitude. But the principles of a fair trial are not to be diluted
or compromised because the jurisdiction may encourage robust advocacy. Although a civil trial is
adversarial in nature, each party is entitled to a fair trial in which they are afforded a reasonable
opportunity to present their case; determination of the proceeding resting upon consideration of
admissible evidence placed before the tribunal of fact. The litigant is entitled to have his or her
case fairly tried free from intrusion of any extraneous matter calculated to influence the jury,
counsel observing the rules of evidence, adhering to well recognised ethical standards and
remaining within the bounds of permissible advocacy.

Cross-examination: [para 17]

Fairness per Browne v Dunne:

- 20 The appellant had not been cross examined about any discussion with Phillips outside court;
nor had it been suggested that he had spoken to Phillips about what evidence Phillips should give
about the stops. Yet this cross-examination of Phillips sought to convey in substance that the
appellant (Rees) and Phillips had conspired to pervert (distort) the course of justice by
fraudulently implicating the respondent in responsibility for the appellant’s accident and
exonerating Phillips.
- 21 The rule arises from an obligation of fairness to both the witness and the party calling the
witness. The cross-examiner must confront the witness whose evidence is to be contradicted by
other evidence or to be otherwise challenged.

Artful opportunism:
- 30 It emerged, after the close of all of the evidence, that this cross-examination as to the
conversation outside court (between Rees and Phillips) was based upon the personal
observation of the appellant and Phillips in discussion by senior counsel for the respondent
- Personal observation = allegation of fraud with no actual evidence to support it

Truth and justice: the paramount duty upon the solicitor towards the Court
- 32 An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of
duty and misconduct by counsel. Whilst counsel has a duty to his client and to his opponent, his
paramount duty is to the Court and to truth and justice. The obligation not to mislead the Court or
cast unjustifiable aspersions on any party or witness arises as part of this duty. In the discharge of
that duty, counsel must exercise an independent discretion or judgment to ensure that the
conduct of their client’s case is in accordance with the dictates of the administration of justice.
- 37 The suggestion of fraudulent conduct therefore involved a departure from the principle that
every litigant is entitled to have their case fairly tried free from the intrusion of extraneous
prejudicial matters.

Artful Theatrics:
- 64 (c) Late in the respondent’s cross-examination of Phillips, the appellant’s solicitor passed a note
from the appellant’s counsel to Phillips’ counsel at the Bar table. This was seen by counsel for the
respondent who then created ‘a scene’ by asking the witness if he knew what had happened. The
trial judge intervened and asked what that had to do with the witness. Counsel for the respondent
then said he was going to ask the witness a question and was warned by the trial judge to be
careful. He then asked whether Phillips had had any discussions with the solicitors or barristers for
the appellant. Phillips’ answer was in the negative. The cross-examination then concluded.
Fragility of the fair trial: trial judge fell for the respondent’s lawyer allegations
- 68 The appellant complains that the objection to the question was never dealt with and no
retraction was made of the assertion in front of the jury that the appellant had agreed that a
ladder on the last rung was a complete recipe for disaster. When the trial resumed on the
following Monday morning, no request was made that the trial judge rule upon the objection that
had been taken nor was it dealt with in appellant counsel’s closing address. We put this complaint
aside.
- In the absence of the jury the trial judge asked defence counsel whether he had been implying by
his question that appellant’s counsel had spoken to the witness (Phillips) in recent times whilst
under cross-examination. Counsel for the respondent eschewed (avoided) any such suggestion.
- 65 The trial judge instructed the jury immediately upon their return to court that there was
nothing improper about the note having been passed between counsel. On appeal, counsel for the
respondent conceded that the comment by trial counsel should not have been made. […]
- 66 The incident was the subject of a forceful comment by counsel for the appellant during his
closing address. […] Nevertheless, the passing of the note was evidently used at trial to support the
respondent’s broad allegation that the appellant and Phillips were collaborating.

Role fulfilment
- 86 the failure of appellant’s counsel’s generally to object to the manner or content of counsel’s
cross-examination does not deny the appellant the right to complain on appeal that counsel’s
conduct was of such an order that he did not receive a fair trial.
- 87 The trial judge also has a responsibility, independently of objections, to prevent such
questioning and to exercise their judicial authority to ensure that counsel observe accepted
standards of conduct. The oversight of the manner in which evidence is elicited is a primary
function of the trial judge. Where evidentiary rules are infringed, the trial judge should intervene
to stop counsel and to make clear why the question was impermissible. This obligation arises as
part of the judge’s overriding responsibility to ensure that the trial is fair.

Lack of self- and external restraint:

- 88 The appellant further contended that the conduct of counsel for the respondent was so
overbearing that the trial judge was unable to exercise the level of control necessary to ensure
that the appellant obtained a fair trial. Instances were cited where the learned trial judge was cut
off or was ignored when attempting to intervene during counsel for the respondent’s cross-
examination of witnesses.
Costs detour
- Victorian Court of Appeal, in its costs decision, at [11]: “We recognise that Bailey’s counsel had
initiated most of the problems which were identified in our reasons for judgment and that at times
this made for difficult choices by counsel for [Rees], we nonetheless concluded in those reasons
that in a significant number of instances [Rees’] trial counsel did make forensic choices … We also
concluded in our reasons that the misconduct of Bailey’s counsel ‘could have been adequately
addressed by objection and immediate direction’ … Whilst the predominant cause of the mistrial
was the conduct of Senior Counsel for Bailey, we considered that the conduct of [Rees’] counsel
was part of the reason why there was a mistrial; and that the making of forensic choices, and laxity
(lack of discipline) in assessing and dealing with that misconduct, made it appropriate that [Rees]
bear some part of the costs of the appeal.”
- At [31]: “It underlined the responsibility which counsel bears for ensuring that, despite an
opponent’s misconduct, the trial is not put at risk of miscarrying. In our collective experience of
jury trials, there is no forensic disadvantage in showing, by a series of well-founded objections,
that opposing counsel has been conducting himself or herself in breach of rules of evidence of
practice, or has been making allegations of serious wrongdoing without there being a basis for
doing so. The order we made reflected the consequence of a failure to take such objections,
whether it be the result of forensic choice (law related investigation techniques) or for other
reasons.”

Reasoning by Warren CJ:

- “The case makes for instructive reading and is a signal that practitioners must remain ever mindful
of their role as officers of the court and the standards of professional conduct that must attend
such a position. The desire to win a case has no part to play in the assessment by a practitioner of
their responsibility towards the court. The duty to the client is subordinate to the duty to court.
There is a line between permissibly robust advocacy and impermissible dereliction of duty.”
 Robust advocacy is permissible as long as it does not require the solicitor to derelict his/her
duty to the court (ie. duty of truth and justice – administration of justice)
- “It is incumbent upon practitioners to continue to examine the ethical dimensions of their
behaviour and consider their actions in the context of their role as officers of the court.”
 Solicitors have a moral duty

Closing address:
- 96 Mr Foreman, members of the jury, [counsel for the third party], he’s a very interesting fellow.
He says to this that there needs to be a sign on this ladder saying don’t extend it and then says
well, the stands – the people who make all these decisions, they say you shouldn’t have one
anyway, but [he] must think he makes them, because he’s got his own theory about that.
- I was just listening to him and I was thinking something that was told to me recently, this court –
the Supreme Court of Victoria – travels to regional centres, and it’s go to Warrnambool and the
court goes to the people, and they have what’s called the circuit. In a few months time you’ll see a
show on television called ‘The Circuit’ where Garry Sweet’s the local magistrate travelling around
on circuit, and they’re filming it over in Western Australia at the moment as I understand it.
- We were in Warrnambool with this very Supreme Court earlier this year, and we were – there was
about six barristers who had gone down for the Warrnambool cases, and we were dining at –
staying in Port Fairy and we were having dinner probably at the best pub in Port Fairy, and there’s
a table of eight barristers sitting around chatting. I bet you’re wishing – you must be thinking gee
I’d be disappointed missing out on that night – and there was a couple seated at a table next to us
who were obviously listening to our chat, and they came over and introduced themselves and he
was an attorney from LA.
- He was a terrific bloke and he said, ‘Hey you guys, you’re all attorneys.’ He said, ‘What are you
doing down here?’ He said, ‘Well we’ve got this case about a fellow who hurt himself at the
Portland Aluminium Smelter.’ He said, ‘Well what’s the guy going to get?’ I said, ‘I don’t know, it’s
a matter for the jury.’ ‘What happened?’ We told him what happened. He said, ‘It’s easy, he’s
going to win that guy.’ He said these California juries, he said they’ve gone mad and he was telling
us about a case about this fellow who had bought a Winnebago and he was driving down the Santa
Barbara Highway, and he and his wife – after their retirement – ‘Beautiful, come on, here we go
darl, off we go, down the highway.’ Picture on cruise control, walks down the back of the bus,
pours a cup of tea and next minute, over the garden rail, roll, roll, roll, completely smashed up.
- He says they sue Winnebago and a Californian jury give them $5m because there was insufficient
instructions on what cruise control meant. We said to him – now this is I swear to you true – we
said, ‘That just cannot be right.’ And he said, ‘Yes, no it’s true.’ He said, ‘What’s worse is that Sanyo
are currently appealing a decision by a California jury where a lady had put her cat in the
microwave and it came out frizzled and deceased and she sued Sanyo for nervous shock on the
basis that there was insufficient signage on the microwave to stop her putting the cat in, and got
30 grand from a California jury.’
- I said to this bloke, ‘It just can’t be fair dinkum.’ He said, ‘It is absolutely fact.’ Now I don’t know if
it’s fact or not, because – I don’t know, but what he told me is fact. It just made me think – I
thought I was listening to my American mate when I listening to [counsel for the third party] about
the sign, because in this case what Mr Rees says about signage is that I didn’t need a sign to tell me
don’t overextend this ladder and that’s his evidence. The standards don’t require it, Mr Rees
doesn’t require it, but Mr Kennett – the opposition over here, manufacturer – he seems to think it
does.
- But you can I think dismiss that and indeed, the plaintiff’s counsel no doubt will have a lot to say
about signage. At his farewell Mr Justice Beach who gave 50 years of service to this very court, 25
years as a barrister and 25 on this bench, at his farewell he said, ‘It’s about time that the
community’ – by that he was talking about litigation – ‘were held responsible for their own actions
rather than everyone slipping in supermarkets, or people looking sideways at each other suing
each other.’ We say his observations were rather apt in relation to this case.
- [111…] I woke up this morning humming to myself, ‘Won’t you come home Bill Bailey, won’t you
come home,’ because if only we had him. If only we had Bill Bailey to come along now, and I think
the next line of the song is, ‘[plaintiff’s counsel’s] been moaning all weekend long.’ And that’s
exactly what will happen as soon as I sit down and address, and I will tell you why he will be
complaining is this. We can’t get Bill Bailey to come home, and it’s a pity. But Mr Bill Bailey would
be turning in his grave listening to the criticisms of [plaintiff’s counsel], and what happens, it’s a bit
like footy, if you can’t win by getting the ball, then you just attack your opponent. And what you
are going to hear in a moment is just an attack on me, they’ll forget about the evidence, they’ll just
go straight – they’ll go for the man. But you look at the evidence, don’t you worry about that, we
can’t get Bill Bailey home, and it’s a pity.
The Descent (decline):
- Hearing [defence counsel] forcefully advance that proposition at the eleventh hour of this case
took me back something close to 40 years in the late 1960s when [defence counsel] was a football
player and he played in the ruck for a team called the Beaumaris Sharks. The Beaumaris Sharks like
their name suggests, had a ‘take no prisoners’ approach on the football field and that was an
approach that was certainly a popular one back in the late 1960s when we had ruckmen of the ilk
of Carl Ditterich being rubbed out more often than he was on the field, and we had Mr Phillips – I
beg your pardon, [defence counsel], going around in the ruck for the Beaumaris Sharks.
- And there was a coach of the Beaumaris Sharks whose face I can picture, he had a head like a
bulldog, he had sort of a military crew-cut which was popular back in the ‘60s and he was the
coach of the team, and at the three-quarter time huddle of the Beaumaris Sharks football team, if
things were going particularly bad for the team at that time, the coach would give an instruction
which went along these lines: ‘Well, look, fellas we’ve done all we can, we’re 10 goals down, we’re
going to the last quarter, I’ve made every coaching move I can think of, but you might as well in
the last quarter, you’re not going to win the game, go out and start a fight. At least you can give an
opposition a player or two, a bloody nose, and they’ll come away knowing they’ve been playing
the Beaumaris Sharks, even if you don’t win the game.’ What reminded me about the tactics that
you saw last Thursday and Friday when we had this desperate attempt to whip up a conspiracy
theory, a perjury allegation in relation to Mr Phillips’ evidence, was very much like the, ‘Look, if
everything’s failed, you might as well go out and start a fight.’ And we saw a few examples of it on
that day.
- It wasn’t only the allegations against Mr Phillips. Remember at one stage we had Notegate, where I
wrote a note which I handed to (indistinct) and asked him to pass it and [defence counsel] stopped
stream and makes a dramatic show about, ‘Did you see that? Did you see the note being passed?’
as if the note was somehow some evidence in support of this wild conspiracy theory which he was
putting on his coach’s instructions. So you needn’t have any regard to the colour and the
movement, you needn’t have any regard to the creation of chaos and confusion which [defence
counsel] has been seeking to engender throughout this case in his client’s interests.