Communication with the Bench – Do I or Don’t I

Practitioners involved in litigation in any of our Courts or Tribunals are often faced with the prospect of having to communicate with a judicial officer or registry staff in relation to a contentious issue.

This may often be done in the context where one’s opponent may, shall we say, be less than cooperative than one would hope.

It also has to be borne in mind that a practitioner’s over-riding duty is to the Court to act with independence in the administration of justice.[1]

The general duty is expressed in Rule 53 of the Barristers’ Conduct Rules of 23 February 2018 which provides as follows:

53.     A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

  • the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or
  • the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barristers.[2]

The Court of Appeal in the Supreme Court of Victoria recently had cause to consider this issue in the matter of Gullquist v Victorian Legal Services Commissioner [2018] VSCA 259.

In this matter a barrister was found by VCAT to be guilty of professional misconduct in that he had engaged in conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence.

That barrister was found to have so engaged by reason of 5 letters he had forwarded to the Local Court of NSW while proceedings were on foot in that Court including 3 addressed personally to the Magistrate, none of which he copied to his opponent.

VCAT ordered the barrister to be reprimanded and for him to take an additional 5 CPD units in ethics and professional responsibilities. The barrister was also restricted from sending correspondence addressed to judicial or quasi-judicial officers without first obtaining the approval of a senior practitioner approved by the Victorian Legal Services Commissioner.

The matter was a civil matter and involved an application to strike out a proceeding.[3][4]

The Professional Conduct and Practice Rules 2005 in Victoria provide Rules in the same term as the Barrister’s Rule quoted above.

 

The Victorian Court of Appeal confirmed the decision of VCAT in refusing leave to appeal.

The Victorian Court of Appeal decision is quite lengthy and it is recommended reading for all practitioners likely to be involved in such situations.

Michael Campbell
Barrister-at-Law

 

[1] See Rule 25, Barristers’ Conduct Rules, 23 February 2018.

[2] See also Rule 54 which provides “A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in Rule 53”.

[3] The comparable rule for Solicitors is Rule 22.5 Australian Solicitor’s Conduct Rules.

[4] See paragraphs 9 – 26.

Michael Campbell
Barrister-at-Law

2018-10-26T02:27:55+00:00