Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
Episode 127
Buy Episode
Ethics and Professional Responsibility Professional Skills
Legal Liaisons: Navigating Court Communication Protocols
Law as stated: 16 August 2024
What is this?
This episode was published and is accurate as at this date.
Caroline Hutchinson, Principal Director and Head of Litigation at Coleman Greig Lawyers, joins David to discuss the standards that govern solicitors' conduct when communicating with the courts. Delving into the recent case of Amirbeaggi and key requirements in the Solicitors Conduct Rules, Caroline shares practical advice on how lawyers can avoid awkward pitfalls and ultimately uphold their professional duties to the court.
Ethics and Professional Responsibility
Professional Skills| What area(s) of law does this episode consider? | Court communication etiquette and obligations under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Cth). |
| Why is this topic relevant? | The legal profession mandates that written communications with the Courts adhere to strict protocols and formalities, serving as a proxy for personal appearances before a judge. Understanding and adhering to the legislated obligations is crucial for maintaining professional standards and avoiding potential penalties for non-compliance. Legislation, such as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, specifies the duties lawyers owe to the court, including the avoidance of informal communications and the proper invocation of the court’s powers. This regulatory framework is designed to preserve the decorum of court interactions and prevent any semblance of undue familiarity or impropriety. Compliance with these rules ensures that legal practitioners conduct themselves with the utmost respect and professionalism. The significance of maintaining professionalism and courtesy in court communications cannot be overstated. Recent rulings, including the decision in Amirbeaggi, have served as notable reminders to practitioners of their obligation to maintain these standards. These standards are crucial, as missteps in communication not only disrupt and undermine the judiciary but can also negatively influence the integrity of the legal process, in addition to embarrassing the practitioner involved. |
| What legislation is considered in this episode? | Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Cth) (“Solicitor’s Conduct Rules”) |
| What cases are considered in this episode? | Amirbeaggi (Trustee), in the matter of Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949
Kalil v Eppinga [2020] NSWDC 40
|
| What are the main points? |
|
| What are the practical takeaways? |
|
| Show notes | Hutchinson, Caroline, Carrie Peterson and Sonya Willis, ‘Writing it right: communicating correctly with courts’ (2024) Law Society Journal |
DT = David Turner; CH = Caroline Hutchinson
| 00:00:00 | DT: | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host, David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services, and Hearsay the Legal Podcast is how we’re improving the experience of CPD. The legislation and rules that govern our profession mandate that communications with the court, written or otherwise, adhere to protocols and formalities that serve as a bit of a proxy for personal appearances before a judge in court, and understanding and adhering to these obligations is crucial to maintain our professional standards, and to avoid penalties for non compliance in the most serious of circumstances. Now, this legislation, like the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, they underscore the duties that lawyers owe to the court, including the avoidance of informal communications and the proper invocation of the court’s powers. This regulatory framework is designed to preserve the decorum of court interactions and prevent any semblance of undue familiarity, impropriety, or bias. Compliance with these rules ensures that we, as legal practitioners, conduct ourselves with the utmost respect and professionalism. Now, recent rulings, such as that in Amirbeaggi, have served as notable reminders to practitioners of their obligations to maintain these standards. Joining us today is Caroline Hutchinson, Principal Director and Head of Litigation at Coleman Greig Lawyers. With extensive experience in litigation and a deep understanding of the legal obligations surrounding communications with the court, Caroline is well equipped to shed light on this critical aspect of legal practice. Caroline, thank you so much for joining me today on Hearsay. |
| 00:01:53 | CH: | It’s wonderful to be here. |
| 00:01:55 | DT: | Now before we get into today’s topic, tell us a little bit about your path in the legal profession. How did you get to where you are at Coleman Greig Lawyers? |
| 00:02:01 | CH: | I started practising in the 1990’s, someone can calculate how many years that is. I’ve always been in private practice, always in litigation, and I guess over time I’ve really honed my skills. I’ve achieved specialist accreditation and in commercial lit, and so most of my time now is spent in commercial litigation. On top of that I head a team of wonderful people of commercial litigation lawyers and employment lawyers, do a little bit of work for charity, and also sit on one of the Law Society of New South Wales committees which is called the Litigation Law and Practice Committee, which is quite a mouthful for those who are involved, but it’s been a real pleasure to be able to be involved in that over the years. |
| 00:02:44 | DT: | Tell me a bit about the work that you do on the committee. |
| 00:02:45 | CH: | A lot of it is policy driven. It is there actually to serve, I guess, the wider legal profession. There are a number of members from different parts of the profession, who come from big practices, small practices… And I guess our job is really to look at what is coming through the door from other practitioners, what they need help with… but also, where there’s various things from the courts or the government where they’re asking for comments and want to change either practice notes or looking at different changes of policy, they will give some feedback to that as well, and then on top of that, I guess, we do have the opportunity to educate the practitioners through the Law Society Journal. |
| 00:03:28 | DT: | Now, having practised as a commercial litigator for your entire career, you’re no stranger to communicating with the court. I’ve heard from some practitioners who’ve had a long career in litigation, as you have, that communication with the court has become less formal, or maybe that the level of formality slips sometimes with more readiness than it might have used to. Do you agree with that? |
| 00:03:49 | CH: | I think that’s right, but I think that’s a product of the change in times. So, my team often tell me I sound like a bit of a dinosaur at times, but we were reliant upon letters, a fax machine and a telephone, and the only way that you really communicated with the court when I first started practising, was you ran down there and you had to appear or alternatively, you stood in line of the registry and waited for them to try and help you. So all of it was really face to face, whereas with the introduction of emails, well it did change, it’s changed significantly because now you’ve got many avenues in which to communicate with the court and so I guess as a result of that and the way in which we do communicate as a society has changed as well, there’s a lot of written correspondence so the ability for practitioners just to be able to send off an email, has really changed the way in which you communicate. So there’s so many levels of that. |
| 00:04:52 | DT: | I suppose a lot of people say that the advent of email has sometimes eroded the level of courteousness of communications between lawyers. |
| 00:05:02 | CH: | Absolutely. |
| 00:05:02 | DT: | In the same way that emails made us less courteous towards one another as practitioners, has email – and I suppose things like messaging on the online court registry as well – made us, not less courteous, but less formal and respectful maybe, with the court? Do you think that’s true of the formality and discipline in communications with the court as well? |
| 00:05:27 | CH: | Look, it can be. I think also for those who don’t practise in litigation 100% or pretty close to all of their practice, there is probably a lack of understanding or a lack of, I guess insight into how you best communicate with the courts. So certainly the advent of being able to email the judge’s associate, the advent of the online court registry, which is a very shortened form of way in which you communicate with the court, I agree with you. I think there has been the introduction of a lot less formalised way in which you do communicate with the court. The pleasantries have probably gone out the window, but I think between practitioners, that’s the same. But certainly, there is that real, I guess, desire, a real sort of mindset. I think it’s probably more a mindset that when you’re emailing, generally it’s something you snap off quickly but you can’t do that with the court, and I think as a result of that is where potentially the little phrases about “may it please the court” and things like that, that you would have done traditionally, aren’t there anymore because there is that level of differentiation in the way in which you communicate through email. |
| 00:06:44 | DT: | Yeah, the level of convenience means that sometimes what we say is not always as well thought out as it could be and adopt the practice, I think everyone probably should, to delay-send their emails. |
| 00:06:56 | CH: | Absolutely. A big rule I think in litigation is just take a breath and let someone else actually have a look at it as well, read over it. And I think that’s probably part of the issues that have also crept in, that potentially is a lack of supervision particularly from the more junior practitioners. TIP: It does seem like there’s some data behind Caroline and I’s anecdotal observation that formality and communication in the legal profession is declining. According to the Annual Report from the Office of the New South Wales Legal Services Commissioner, of the 2,842 complaints made in the financial year ending 2023, nearly 18% of those, related to a lawyer’s poor communication. In fact, poor communication was the second most complained about issue, just behind professional negligence. |
| 00:07:46 | DT: | Now we’re talking about a case today that’s illustrated a lot of this, I suppose; the decision in Amirbeaggi. Tell us a little bit about that decision. What happened? |
| 00:07:54 | CH: | All right, so it was handed down in October of 2023. The judgement’s only 22 paragraphs, but yet it’s caused such a stir in the profession. So basically, it’s a matter which had been in the court’s bankruptcy jurisdiction. There had been orders made by the court previously. The practitioners decided between themselves that they wanted to have a change in the way the timetable had been run, and so they got their heads together as you generally do with litigation and decided to send off consent orders to the judge through the judge’s associate for her to then make the orders. But the way in which it was expressed, and this is where there was a real criticism from the judge, that the email that came across to her, and this is Judge Given, was that the way in which it was phrased, it was sent by it was sent by a law cadet, so not a legal practitioner and not the practitioner on the record either. It was made in a way in which it was almost assumed that the court would make the orders. So the last phrase of the email was “Please have the directions hearing relisted in accordance with the orders.” Full stop, and ended it with “Kind regards.” And I think what happened was the judge looked at that and said “no, not good enough,” and she called the practitioners in and asked them to come in and appear before her two days after receiving that email. TIP: Okay, so we’ve just mentioned the Amirbeaggi case. The full citation for that decision, if you’re looking for it, is Amirbeaggi (Trustee), in the matter of Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949. Those proceedings started on the 4th of August 2023 in the bankruptcy jurisdiction of the Federal Circuit and Family Court. On the 17th of October 2023, a law clerk from the solicitors for the second respondent emailed Judge Givens’ Chambers. This is the email in its entirety. “Dear Associate, We refer to the above mentioned proceedings listed for 2 November 2023 before Judge Given. We attach signed short minutes of order shared with the court concurrently. The applicant and the first respondent solicitors have consented to the orders and have been copied into this email. Please have the directions hearing relisted in accordance with the orders. Kind regards, In response, Judge Given scheduled a directions hearing for the 19th of October 2023, requiring the legal practitioners on the record to address the non-compliance with the 12 September orders and to discuss the authority by which a law clerk would direct the court to make orders and relist proceedings. Ouch. Her Honour delivered a judgement addressing the declining standards of conduct in the court, highlighted by that recent email from the law clerk, and the judgement emphasised several key points. Solicitors need to avoid informal personal familiarity with the court, as Rule 18 of the Solicitors Conduct Rules require, and neither legal practitioners nor non legal personnel should be directing the court to make orders or relist proceedings. Consent orders are proposals until the court officially enters them, and no correspondence should be suggesting otherwise. Furthermore, breaches of orders like the directions made on the 12th of September have to be explained to the court, and the parties should use the liberty to apply order to bring that to the court’s attention if they need to. Additionally, and interestingly, because I think I sign off almost all of my emails in this way, signing off emails with ‘kind regards’ when sent to the court is apparently inappropriate. Only admitted legal practitioners, preferably those on the record or at least with carriage of the matter, should be communicating substantive matters or seeking orders from the court. Now that one I can agree with. |
| 00:11:26 | DT: | So, a few of the issues that we’ve already described there, including a lack of supervision perhaps given who sent the email… Caroline, isn’t it a good thing that parties are getting together, they’re making orders by consent, there’s a neat and orderly approach to case management, that’s something that judges usually like to see, right? |
| 00:11:45 | CH: | Well, absolutely. Absolutely. But I think it’s probably understanding, there’s probably a balance there. There’s a balance in which the parties potentially want to do something, but then the understanding that there is this overriding principle that the court is the boss, that you are in a jurisdiction or you’re running a case and the judge may have a different view about that, because the judge can potentially see that there’s other issues that need to be ventilated between the parties, and that’s in fact what happened here. When she called the parties back in, orders were made for the relisting, but there was a different timetable associated with that. And then she went on to also to say “well look, if you want to relist the matter or if you can’t comply with the timetable… Well, provide me with some notice about that and we’ll then relook at it again.” But absolutely, it’s in the interest of parties to try and consult to try and agree on a way forward, but I think it’s almost the presumptive nature in which this was done, and also I think it was the second time as well, in this particular matter, that the parties had been late in doing what they were supposed to have done. |
| 00:12:57 | DT: | Now do you think this is a matter of supervision, or was it maybe a matter of something you were describing before, which is practitioners who are unfamiliar with that court or unfamiliar with litigation more broadly, making some assumptions around the way case management works? |
| 00:13:15 | CH: | Look, possibly, although I think the practitioners in this case are quite experienced and you do feel for them, you know. You sort of read this judgement and I bet there was a bit of a couple of sleepless nights going on, mind you. But I think it was the lack of formality, and it was really assuming the court would rubber stamp something. There is the issue of formality, but particularly courtesy, and I think that’s probably where the real issue lay, was the courtesy to the court. |
| 00:13:43 | DT: | Yeah. And I think you see that issue in other contexts as well. I mean, as you said, this has captured some attention in professional circles, but I remember seeing all the time in return of subpoena lists, in directions lists, seeing law clerks, paralegals seeking leave to appear or law graduates, very poorly instructed, really unable to assist the court beyond showing up with some consent orders. “Please make these, I have no alternative to give you.” That’s pretty discourteous to the court as well, but it’s also, unfortunately, a pretty common practice. |
| 00:14:18 | CH: | Yes it is, and I guess that’s probably where it comes into understanding the list in which you’re in as well. So I guess if you are, not that a registrar requires you to be less courteous, or if you’re appearing before the court, you aren’t properly prepared, but there will be some leeway. So if you’re appearing, say on a subpoena list, well then the job is to do one thing. Or, if it’s in the online court registry, the court’s made it fairly clear that it’s where you’re seeking particular orders within that court, that registry situation in the online court, well it’s really, it’s quite a direct speech and the courts don’t mind that. So I guess it’s about being familiar with the jurisdiction you’re in. So if it’s a local court, district court, supreme court, federal court, and also what you’re there to do. And if you don’t feel properly prepared, speak up. I think generally I’ve found that the court officers won’t hang you out to dry, but you need to, I guess, also step up a little bit and understand “well look, you’re there to do a job, but you have to be properly prepared.” Look, I do feel for those practitioners that turn up, or the law clerks that turn up, and they haven’t really been given the right instructions. |
| 00:15:33 | DT: | Yeah, everyone has a horror story about their first court appearance, right? |
| 00:15:37 | CH: | They do, they do, and gone are the days where you used to have this packed, this packed courtroom where you’d sit there and sweat away and wait for your number to come up on the list as they used to do. |
| 00:15:46 | DT: | Yeah, and what always happens there is, you’re a junior lawyer, you don’t have much experience in how to prepare for these sorts of hearings, and you’re told “it’s going to be really easy, just get up there and say this, or get up there and hand over this packet of documents and say that, and you don’t need to do anything else.” But yeah, we do need to be properly instructed and be in a position to assist the court. Alright, so this has raised a few issues for us; the responsibilities of the solicitor on the record, our overriding duties as officers of the court and to the administration of justice, courtesy before the court and in written communications with the court. What are some of the rules? What are some of the laws that step this stuff out for us? |
| 00:16:26 | CH: | Alright, so as we know, as practitioners, we’re required to comply with the Conduct Rules. So Rule 18. 1 requires a solicitor to deal with the courts not in an informal or personal familiarity way, and that is so that the courts are not undermined by a non-lawyer; the sense of “this is just a court, this is nothing unusual.” It’s the requirement and understanding that the court has real power here. So we’ve also got Rule 21.1, and this requires a solicitor to take care to invoke the coercive powers of a court. And this requires a solicitor to provide proper evidence to the court to have the material, this is where the whole preparation issue comes in. There’s also Rule 22.5, and this is where if you are going to communicate with the court and this particularly in relation to emails, the other party needs to be copied in on that. So ensuring that there is no potential bias that could be seen as a result of that. TIP: So Caroline just mentioned that Rule 21.1 of the Solicitor’s Conduct Rules sets out some criteria that solicitors have to satisfy when they seek to invoke the coercive powers of the court. Those criteria include that the relief sought by the solicitor must be reasonably justified by the material then available to them, that’s Rule 21.1.1. It must be appropriate for the robust advancement of the client’s case on its merits, as per Rule 21.1.2, and the orders sought by the court must not be sought principally in order to harass or embarrass a person, as per Rule 21.1.3. Nor must the court’s powers be invoked in order to gain some collateral advantage either for the client or the solicitor. That’s Rule 21.1.4. And then also on top of that is section 56(3) of the Civil Procedure Act which requires parties to comply with directions of the court as they can do, and ensure that where they aren’t able to comply, that there’s an explanation for that. And then overarching all of that, I guess, is the paramount duty that you have to the court. |
| 00:18:40 | DT: | And the obligations of the solicitor on the record as well, I suppose, which are special, over and above the obligations of a solicitor appearing before or communicating with the court. |
| 00:18:52 | CH: | Absolutely. |
| 00:18:52 | DT: | What are the obligations of the solicitor on the record? You’ve been the solicitor on the record countless times, I’m sure. How do you look at that role? |
| 00:19:00 | CH: | Look, I look at that role as at the end of the day, the buck stops with me. If something goes wrong, I have to put my hand up and say to the court “okay, this is my problem. I need to deal with this.” So if you’re a solicitor on the record, it’s a matter of providing proper supervision to those who you are instructing. It may not necessarily be to oversee them in every single little detail, but to ensure that you’ve really provided them with proper training, and then they are coming to you for advice, for help, for potentially also strategic sort of advice as well, but particularly where there’s situations of, I guess communications with the court, the way either they post on the online registry or they email. I generally set up a system or a process that I’m happy with and so they follow that through, and then if there are matters that are really quite concerning, well then there’s a lot more day to day, really getting into the finer detail of that, but certainly the buck stops with me at all times. |
| 00:20:07 | DT: | And in terms of the consequences for not abiding by these rules… Well, there’s some pretty immediate ones, as we saw in the Amirbeaggi case, which is that you get grabbed by the ear and pulled before the court to explain what’s going on. When we’re talking about the Solicitor’s Conduct Rules, what we’re usually talking about is unsatisfactory professional conduct or even professional misconduct. Are there any situations where you can imagine this amounting to professional misconduct? |
| 00:20:30 | CH: | Oh look, it would have to be consistent and almost very dishonest behaviour, I think. In this particular case, the practitioners apologised to the judge. She accepted their apology, but if it consistently occurred and people knew it was occurring, and I think that’s probably the difference, you need to have a level of knowledge that you are letting this occur, that you really don’t care and are potentially placing the profession into some form of disrepute. And look, there have been cases in the past in which there are personal cost orders and there is the ability for the court to do that. That is definitely a consequence. I guess in relation to misconduct itself, well, then it’s up to the regulator, it’s up to the Legal Services Commissioner to really look at that. And look, occasionally you do see it from time to time, where the court has referred the matter onto the regulator. |
| 00:21:28 | DT: | Yeah, you’re right. It would have to be pretty bad and pretty consistent to rise to the level of professional misconduct, and as you say, so far as our obligations under the Civil Procedure Act are concerned, there’s a very broad discretion to make cost orders, including against the practitioners. But you raise a really good point, which is, this has more than a regulatory or a formal consequence. It has a consequence for your reputation as a practitioner, and it’s not a large profession in Australia, and if you practise in a specialist list in front of a handful of judges, it’s even smaller. You don’t want to be that practitioner who, every time they say something to the court, it’s being second guessed or double checked because you have a bit of a history of not communicating with the court appropriately, or not saying accurate things, or having to be corrected later on. So, it’s so important to have a good reputation, or at least not a bad one, with the court, whether you’re an advocate or whether you’re the solicitor on the record. |
| 00:22:26 | CH: | And I think that also then comes back to “well, if you’re going to appear before the court, you need to have the evidence available to you. You need to be properly prepared, and if you’re going to say something from the bar table, make sure that you can back it up.” And I guess that’s where you do see where potentially your reputation as a practitioner, there can be a sense of “well, look, can I trust this person? Is what they’re saying true?” And you don’t want to be in a position, I think, in court where people are, as you say, second guessing you. Because what you’ve said, you don’t really believe it could be possibly right. And look, you do see it from time to time where you’ll be in a list and one practitioner will pull the other one up and say to the court “well look, I don’t believe that, I think that they’re wrong”, and then you’ll see the judge traverse their way through that to determine, well, what the case is. Yeah, so that certainly does happen. |
| 00:23:21 | DT: | Before we move on from written communications, I had a couple more questions. Recently on the show, we talked with Chauntelle Ingenito, a barrister, about dealing with self represented litigants and often we have to do that in court, in person at a hearing, but self represented litigants, if I can make a generalisation, are not unwilling to correspond with the court either, and sometimes we can see an email a day, a few emails a day, to the judge’s associate or to the registry, traversing substantive issues, making submissions submitting evidence. And I’ve heard some litigators say this, we are in a dynamic of moving away from, in a way, oral advocacy towards a more written style of advocacy with online court, with remote hearings, with a preference for written evidence in chief and written submissions. There’s an increased need to communicate with the court persuasively in certain forums, like the online court. How do you balance communicating courteously and communicating in a way that deals with some of these issues that a self represented litigant may raise? I suppose what I’m asking is, as professionals, we have these obligations to be courteous and to limit ourselves to the topics that we know we should raise in correspondence with the court, but often unrepresented parties might not follow those same rules. What are some of the pitfalls and how do you make sure that you’re not falling into these pitfalls around getting caught up in that correspondence? |
| 00:24:52 | CH: | Well, I think it’s a very good question and it’s not an easy situation to be in, and it doesn’t necessarily need to be a self represented litigant, it can also be another solicitor as well, because a lot of correspondence can be very adversarial and at times quite aggressive. So certainly my view has always been, write a draft, take a breath. Take a breath. You might have to sleep on it overnight, particularly if it’s in a situation. I think in written correspondence this is, where you’re in a position where potentially what you’re about to write can be placed on the record, and it can be attached to an affidavit. So you really need to be super careful in how you do that. But I think having the mindset at all times that whatever I write, whatever I present, this might appear before a judge, and I need to ensure that if it does, then I’m comfortable with that. I remember as a young practitioner, I referred to a judge in a letter, without saying “His Honour” and “His Honour Justice [blah”], I just referred to “Judge [blah]”. I can’t even remember who it was now, and I remember that then being attached to an affidavit, and that was picked up. And at the time I was quite a young practitioner and I thought “oh my gosh, what have I done? What have I done? What have I done?” But that’s just a simple thing. It wasn’t a big deal, but nonetheless, it was something that you go “well actually, it probably taught me the lesson of just being really careful with the way in which you do that.” Sometimes I think as litigators, it’s almost like you have this sense of “oh, I’ve got to argue my case.” |
| 00:26:31 | DT: | Yeah. |
| 00:26:32 | CH: | “I have to be seen.” Particularly if you’ve got your client in the back of the courtroom as well, it has to be a good performance almost. And so you can get into that trap where you just argue for the sake of arguing, or it becomes a performance because you’ve really got that pressure. And that’s where I guess the rules then come back into play, which is, well, the paramount duty is to the court, and if you’ve got a client telling you to do one thing, but you believe it’s wrong, you’ve just got to say “no, this is the way I need to go.” But certainly never act in haste. |
| 00:27:05 | DT: | Yeah, absolutely. You’re right. You don’t necessarily have to be dealing with a self represented litigant to have these issues of correspondence on inappropriate things, or venturing into making submissions, or putting evidence before the court in emails. I can tell a story from my own practice where I got into this sort of uncomfortable situation. There had been a hearing on a particular interlocutory issue. During the course of the hearing, I made a submission, and the submission was to the effect that the damages that were being claimed in this matter didn’t exceed the court’s jurisdictional limit. That, if you added all these things up and took them at their highest, they could only be X which is clearly well below the court’s jurisdictional limit, and the court made a finding on that basis. I was surprised after the hearing to find that my opponent had emailed the court copying me to say I had misled the court because if you added all of them up, it was actually Y, and now this was a small variance. I think it was a 2 or 3% difference to what I had said and it didn’t change that it was below the court’s jurisdictional limit, but seeking to relitigate the issue after the court had made its findings and I did really want to write back and say “no, no I’m right. How dare you say that I’ve misled the court. That’s a specious inflammatory thing to say.” You get very defensive for all of the reasons that we’ve just described around our reputations being important. But one practical tip that I can offer worked for me in that situation was, because you do feel that you want to reply and you want to assist the court, but maybe in a way that vindicates you, I just wrote back and I said “I don’t consider this the appropriate forum to ventilate these issues, but I’m available to assist the court if it would help,” and left it at that, and that I think for me personally, let me say, “okay well, I’ve responded to the issue. It’s no longer in my inbox unaddressed, but I haven’t tried to traverse it in a way that’s scandalous to the court.” |
| 00:29:00 | CH: | Yeah. You would have copied in the other practitioner and it would have given the court the opportunity to look at both pieces of communication, and if the judge had decided “well look, actually, I really need to hear this again.” Well, there would have been that opportunity, I guess, for the judge’s associate, to contact the parties and say “okay, I need to hear this again.” And certainly you do see that. I had something fairly recently where we had provided final submissions on a particular, in a particular matter, and then the judge came back to both parties and said “well, there’s this particular issue which I need both parties to consider.” And so we did as a result of that. So, I guess in some ways, the courts are actually probably a lot more flexible now with technology than they ever used to be. |
| 00:29:47 | DT: | One other confounding factor, I suppose, as we move into this era of written advocacy in correspondence with the court being a lot more common, is that we do see blurring the lines of persuasive communication and courteous communication, in the sense that when we needed to persuade the court of something to make an order that we were seeking that wasn’t by consent, for example, well, we did that in court and we did that through oral submissions and there were particular conventions around that. But increasingly now, we’re doing that by email or in a text box on the online court or something like that, and it can be easy to, I guess, blur the lines between what’s an appropriate way to address the court in writing that’s still is a persuasive way to put forward our client’s case. Do you have any views on that? |
| 00:30:30 | CH: | Look, I think there’s a level in which you have to bite your tongue. But on the other hand, if there are reasons for the order you’re seeking… And this is, I guess, in Amirbeaggi, this Judge Given said “well, I needed the reasons to understand why you wanted the adjournment, and now that I’ve heard them, well, then this is the way I’m going to do it.” So, so long as you actually can provide those reasons, there’s nothing wrong with doing that, but it gets to a point at which you go “now the parties are just becoming argumentative.” And is the judge really going to be interested in anyway, and generally what you first presented, unless there’s some significant difference from when the opposing party responds, generally, there’s very little you need to say beyond what you first said. So I guess it’s about just finding that balance, I guess, again. |
| 00:31:23 | DT: | Yeah, absolutely. I suppose the takeaway there is, it’s actually better to be a bit more persuasive, right? To properly articulate the case rather than try to say “well, I don’t want to bring this up in correspondence, so I’m just not going to say anything and say, ‘make the orders, please.’” |
| 00:31:36 | CH: | Oh, absolutely, and I mean you have to act in your client’s best interest, but if you’ve put your best foot forward initially, and provided the reasons in writing initially, and sometimes it might be also because you’re relying on an affidavit – affidavit evidence – so long as it’s there initially, you shouldn’t have to say too much more than that, unless of course your opposing party has brought up something completely different. |
| 00:32:00 | DT: | Yeah. Now, so far we’ve been talking about written communications with the court. That’s what this Amirbeaggi decision was about. Let’s talk about appearing before the court, but in a particular context, which is the remote hearing, they became a necessity during COVID-19, which is a challenge for us all across the globe, as you know, our cat lawyer friend in the US would attest, but they’ve stuck around after social distancing measures subsided, and I think they’re here to stay. They can be very convenient. I remember during COVID-19 doing work in the corporations list in the Supreme Court of Victoria, which was now possible to do as a corporation’s lawyer from New South Wales because there was no geographic boundary, but it raises some etiquette and formality questions with the court that aren’t really codified, right? There’s no rules about some of this stuff. |
| 00:32:52 | CH: | Yeah look, there are no rules. I think since COVID, the courts through their practice notes, have tried to mandate ways in which they want practitioners to act or they want practitioners to proceed when there’s AVL, but certainly it is a very different way in which to appear, and I know some jurisdictions still use AVL quite significantly, certainly the Family Court I know is one, Federal Court is another. If you’re doing a mediation, a lot of the District Court, the Federal Court will actually also provide AVL facilities, but it it’s interesting. There’s a bit of case law around this and if you read the cases around 2020, 2021, there were obviously some situations which the courts were finding really difficult, and when you think about it, almost overnight, we had to change the way in which we practised. The courts had to try and catch up with that to allow parties to have access to justice, and so I think there was a level of informality and a level of letting things go, which now that we’re back to face and we don’t have the COVID restrictions, it’s almost like we’ve given a child’s been given a toy and now it’s been taken off us again. But certainly, I was involved in a matter through COVID and the opposing party was sitting in their car. I think there was a self represented litigant sitting in a car driving and the judge had to say “no, you need to pull over to the side.” And there was a camera and the camera was in the back seat and it was all very weird and wonderful and you’re thinking “where is the respect?” It’s all just completely gone out the window, but I think in those times it was very different. But I think some of it has still continued to creep in, and I think also then for those younger practitioners who have started through that period of time, and if we remember a number of them had to go through university and College of Law and start their careers, where that was all they knew, and so, just like I said, when I first started practising, you’d run up to court and you’d had to sit in the back of the court and stew and worry about what was going to happen next. But, you did have that experience of hearing other people and being part of that and understanding hat the judge was wanting. So that when you had your turn to stand up, you could learn from other practitioners, which I think has been quite difficult for the younger lawyers. |
| 00:35:20 | DT: | Absolutely, and we see that, look with parties, but also with other people involved in litigation. I remember there being a decision with some credit findings about an expert witness who was clearly on his phone and answering emails during his evidence, while he was giving evidence remotely where he wasn’t really focused on the task, and the judge wondered in his judgement, whether given that he was multitasking the entire time he was in the box, whether he should be allowed to charge for his time. It does seem like there’s something difficult about giving the court our full attention when we’re sitting in our home office or in our office. Have you seen examples of this? |
| 00:35:58 | CH: | Oh absolutely, absolutely. For starters, sometimes the camera doesn’t work, if you’re supposed to have it here, and the camera’s there, and then all of a sudden there’s issues with technology, and people are lagging. Stuff that happens behind people as well, which they’re not really aware of, and also the way in which they’re dressed. That’s actually something that I’ve really noticed that you just go “well, they’re not in a suit or even a tie or a shirt, just in a t-shirt.” And that even with witnesses as well, remembering the times when you were cross examining witnesses, and they’re in different states or different places, and they’re at their home, there was that level of informality where people are eating, or just having a coffee, drinking their coffee, and you’d go “well, if you were sitting in court…” but yeah, certainly there’s a 2020 case of Kalil where the judge, and this was actually a practitioner. The practitioner was eating a muffin and I think in that case actually there was a cost order against the practitioner. |
| 00:36:54 | DT: | Oh wow, that’s an expensive muffin. |
| 00:36:55 | CH: | Yeah, it was a very expensive muffin. TIP: So the case just mentioned was the case of Kalil v Eppinga [2020] NSWDC 40. In that case, the judge found that the solicitor appearing’s poor performance led directly to the incurring of unnecessary costs and delay. Amongst some other comments about the instances of the solicitor’s incompetence during the proceedings, the judge stated at paragraph [221] of the judgement, and I’m going to omit the names of the solicitors out of courtesy, “on one occasion, [the solicitor] was eating a muffin whilst in [another solicitor’s] office and appearing in court by AVL. His response to that was most unsatisfactory.” One wonders what the response might have been. The court made an order that the solicitor pay the costs of the other party on the indemnity basis and directed the registrar to forward the papers in relation to the matter to the Legal Services Commissioner with a recommendation that they investigate whether the conduct amounted to unsatisfactory professional conduct or even professional misconduct. I think that a practitioner also didn’t stand. When you’re face to face, the judge comes onto the bench, you’ve stood for them to come in, you then sit down… That requirement is actually still there, which seems a bit odd I think, when you’re not actually in the actual courtroom itself, but it’s actually a requirement, you should be doing it. So you did see a lot of that where people are just sitting, and I think maybe some people felt really uncomfortable. How do I do this? |
| 00:38:20 | DT: | And some of these things, like maybe not eating and drinking during your appearance, are obvious to some of us, and then there are things where I think opinions really differ. Because none of this is written down, I want to throw some hypotheticals at you, I just want you to tell me if it’s okay or not okay. So, turning off your camera during your appearance? |
| 00:38:39 | CH: | Not okay. |
| 00:38:40 | DT: | Not okay. Muting yourself so you can talk to a colleague? |
| 00:38:43 | CH: | Oh well, no, not okay, because you shouldn’t have the colleague in the room with you. Unless of course, you’re appearing with counsel or something. |
| 00:38:50 | DT: | See because, if they were sitting at the bar table with me, a quick exchange is okay, right? I would whisper under my breath something to someone at the bar table, but you wouldn’t have a long conversation. So it’s kind of similar, but not similar. |
| 00:39:02 | CH: | Yeah, or you might say to the judge “Your Honour, I need to have a word with my instructing solicitor” and so the judge would say “okay.” And so you turn around and have a chat. But yeah, this whole muting thing, I just… I don’t think that’s okay. |
| 00:39:14 | DT: | What about answering an email while the judge is giving reasons so that you’re kind of just sitting there listening? |
| 00:39:19 | CH: | Oh no, no, no. Sorry no, that’s a no. |
| 00:39:24 | DT: | I agree, but I think I’ve seen all of these things happen, right? There’s something about being in front of our laptop that we, otherwise exposed to our inbox, to all the other work that we’ve got to do at the time we’re appearing, it can be a real trap for this sort of stuff. |
| 00:39:38 | CH: | It can be, and actually the experience is that it all comes floating back, of course, as you start thinking about it, but even mobile phones ringing, when people are giving evidence or were appearing and you think “well, if you’re in court, you would have had to put on silent” but practitioners have forgotten to do that, so they’re fumbling around trying to sort out issues. |
| 00:39:46 | DT: | I suppose from the perspective of these issues coming up for witnesses, it’s really the solicitor’s responsibility now to be preparing witnesses in the way that we used to for in-person court appearances, still do for in person court appearances, that we should be preparing witnesses for the etiquette of an online appearance. |
| 00:40:13 | CH: | Absolutely, absolutely. That’s our role as a legal practitioner to give them that guidance, how they should dress, how they should act, what they’re supposed to say to the judge, how they’re supposed to address the judge, all of those things. |
| 00:40:27 | DT: | And I suppose for us, as you say, there’s a cohort of lawyers who have entered the profession without experience in-person hearings, either in their training or in the first few years of their practice, crucially, as more experienced lawyers, what can we be doing to help them? |
| 00:40:43 | CH: | It’s certainly making ourselves available to them. It’s certainly through the Law Society, that’s really one thing we’ve been really focusing in on supporting those people. Because actually, coming out of COVID, on social media, there were instances which I read of younger practitioners being almost vilified by other practitioners because they had said something or done something wrong when they were appearing, or they felt they had no support. So I guess if you’re in a larger firm, well, it’s a lot easier because hopefully you’ve got that support around you. If you’re in a smaller firm, well, it’s actually reaching out to either other members of the legal profession, so through the Law Society. If you’re briefing barristers, the Bar is fantastic. You’ve got some really, really wonderful resources there, some people who can actually help you out. And then there’s other organisations or other groups like the Young Lawyers and things like that. So, getting together and really working together and supporting each other through that. |
| 00:41:44 | DT: | So far we’ve been talking about how to comply with these formalities, protocols, it all sounds a little bit stuffy, right? But you know, there are some traditions, some rules of etiquette that are a bit warmer, a bit more collegiate. I’m thinking of appearing in a court over the Christmas break when the air conditioning was broken and the judge letting everyone know it was okay to remove your ties and jackets. Or, I remember, and this is despite the usual rule about not exchanging pleasantries like this before the court, Registrar Bradford in the week before the holiday closure, wishing everyone a Merry Christmas at the end of their appearance. Are there any examples of this that, that you can think of, these sort of more acceptable, warmer, more collegiate departures from etiquette? |
| 00:42:28 | CH: | Yeah, so look, I think certainly being able to communicate really well with the opposing party, actually having that walking up and either shaking their hand or, and this is obviously before the judge comes onto the bench, but the ability to have that communication between the parties, that you’re not so adversarial all the time. I think that’s a real pleasantry. I think certainly, yes, judges wishing you a Happy Christmas, and even being in the courtroom where the judge is helping a junior practitioner. So I remember in my early days, I had turned up to receive judgement in a matter. We’d been successful, it was very exciting, I remember, very exciting. And then the judge asked me to speak to him on the matter of costs, and of course, at the time I was all quite excited because my client had won, and I recall having the documents with me. So I had offer letters and things like that. So I knew that I needed to make a submission in relation to indemnity costs, it was just the way in which I went about it. And because I think I was fumbling a little bit, the judge really guided me through that, and talked me through that. Whilst I bumbled around a little bit, he then talked through and helped me to communicate what I was trying to say. And then of course, the opposing party had their opportunity to say things as well. But I remember at the time thinking that was a very kind thing to do, because he could see I was struggling. He knew that I had the documents, I was ready to hand them off, I knew what to do, but it was all probably a little bit overwhelming at the time. |
| 00:44:08 | DT: | I had a similar experience with Justice Black. I did a lot of corporations work, he’s a fantastic judge, and I remember making a submission and him very courteously and politely and understatedly saying “well, are you absolutely sure you want to make that submission, because this would be the consequence of that.” And I said “oh no, actually, maybe I don’t want to make that submission and maybe I want to withdraw it.” He said, “yes, okay then.” And I suppose there’s a whole other topic that we could spend another hour talking about, which is the benches courtesy and etiquette towards practitioners. Regrettably, we see some lapses there as well. I think, sometimes we describe it as one of the only workplaces where you can be bullied in public and on the record and really nothing happens at all. |
| 00:44:49 | CH: | Yeah, absolutely. But I guess it’s where the court can be quite exacting. The expectations of a legal practitioner are high, and that I think goes back to the preparation. So again, if you can illustrate to the court that you are prepared, that you’re not just running in at the last minute, and this is probably where a supervising practitioner as well, it’s really important to ensure that either you appear or if you’re not appearing, the solicitor that is appearing is well prepared, and so long as you in that position, generally the court will be okay with that. And look, I think the court has tried to work with technology. It’s been challenging. It’s challenging for practitioners, but I think it’s challenging for the court as well, and there’s a lot of inconsistencies also across the jurisdictions, which all the legal practitioners have to deal with. But I think we’re all gradually coming to terms with it, trying to find our mojo, we’re not quite there yet, I don’t think. |
| 00:45:47 | DT: | Yeah. Just going back to what we were talking about before, in terms of some of the more pleasant aspects of etiquette before the court, I think this is a real fraught area. It’s not one that I think you’d try if you were a junior practitioner, certainly not if you were appearing online, because I think it really can’t land. But something I’ve noticed is, very sparingly, using humour is a unique part of our tradition of advocacy in Australia, and I think it can sometimes be received well by the bench and by our opponents. I remember seeing a matter in the technology and construction list. It was a big matter, some very recognisable faces appearing for a lot of parties. The matter was called in the list. About six different parties trudged up to the bar table to appear before Justice Hammerschlag. And His Honour said “well, what’s this all about?” And one of the advocates stood up and very drolly sighed and said, “money.” And it’s not the sort of thing that you can get away with every time, but it breaks the tension a little bit. |
| 00:46:48 | CH: | Well, it does. It does. But I actually, interestingly, just remembered, and you don’t see it, but talking about the courtesy of the court or, I guess, how the judges perceive legal practitioners, the days of the judge saying at morning tea time “okay, come in and have morning tea with me.” When I first started practising, that was certainly something that if you’re in the middle of a hearing, a judge would invite the barrister, the counsellor, and then quite often the solicitors as well. I remember sitting there as a junior solicitor, sweating away in the judge’s chambers. You don’t see that anymore. I think rightly though, I think probably our society expects there to be that real distinction between the two. |
| 00:47:30 | DT: | I think sometimes that seems a little strange to clients. |
| 00:47:34 | CH: | Oh, absolutely. |
| 00:47:35 | DT: | That you’re going to have lunch with your opponent and the judge instead of them. |
| 00:47:39 | CH: | Exactly, exactly. But certainly humour, or some sort of strange and odd statements along the way, it can help. And certainly you see some of that creeping into judgments as well, certainly where judges will use sort of metaphors or various comments and you think “okay, well that’s that provides you with an insight into their personality as well.” |
| 00:48:00 | DT: | Yeah I’m thinking of Master Sanderson’s ‘Ode to a Dead Corporation’; the last judgement in the Bell Group litigation, is a great example of that. Well, Caroline, we’ve had a pretty wide ranging discussion today. If there was one thing you wanted listeners to take away from our conversation today about etiquette and proper communication with the court, what would that be? |
| 00:48:19 | CH: | Look, I think it’s to rely on those who supervise you, to reach out to other legal practitioners for help when you need it. Don’t see the court as an enemy, but see the court as providing the access to justice to your clients. And really, I guess, be prepared, but also enjoy your time that you’re there before the court, because it’s really an important part of your role as a lawyer. As time goes on, you’ll gradually learn and have the experience. Ask questions of your supervisors, ask questions of your council, ask questions of those around you and they’ll be able to help you out through this process. |
| 00:49:02 | DT: | Yeah, absolutely. We always have all of these resources at our disposal as a collegiate profession, and there’s nothing discourteous about asking for help. |
| 00:49:10 | CH: | Absolutely, absolutely not. |
| 00:49:12 | DT: | Caroline Hutchinson, thank you so much for joining me today on Hearsay. |
| 00:49:14 | CH: | Thank you very much. Thanks for having me. |
| 00:49:26 | DT: | As always, you’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guest today, Caroline Hutchinson, for coming on the show. Now, if you want to learn more about communication with the court, maybe less written, more verbal, maybe more about advocacy, go check out our episode with the Honourable Chief Justice Lucy McCallum. That’s actually the first ever episode of Hearsay, and it’s a great one to tune into if you’re looking for some advocacy tips. That episode is called The View from the Bench, Tips for Aspiring Advocates. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Now, whether an activity entitles you to claim a CPD unit is self assessed, as you well know, but we suggest this episode entitles you to claim either a professional skills point, or an ethics point. Take your pick. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay The Legal Podcast is brought to you by Lext, a legal innovation company that makes the law easier to access and easier to practise, including your CPD. Finally, I’d like to ask you a favour. If you like Hearsay The Legal Podcast, please leave us a Google review. It helps other listeners to find us, and that keeps us in business. Thanks for listening, and I’ll see you on the next episode of Hearsay. |
You must be a subscriber to access this content.