1. Introduction
1.1 Who should read this Guidance Statement?
This Guidance Statement is for solicitors and law practices.
1.2 What is the issue?
The purpose of this Guidance Statement is to outline the ethical issues that practitioners should consider when communicating with the court in the absence of their opponents - whether via correspondence, email, telephone or similar methods - under the Australian Solicitors’ Conduct Rules 2012 (‘ASCR’) and the common law.
1.3 Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.
2. Ethical principles
ASCR
Rules 3 and 22.4-22.7 of the Australian Solicitors' Conduct Rules 2012 (ASCR) apply to this Guidance Statement.
These Rules impose a professional obligation on all solicitors[1] together with the relevant common law and legislation.
3. Issues
In the interests of ensuring a transparent and fair justice system, it is undesirable that communications take place between the court and one party in the absence of another. While there are exceptions to this rule, the need for an honest, courteous and credible system of justice means that recourse to the exceptions should be rare. It is well-established that the general rule is that any communication with the court - including communication with a judge’s associate - should be made with the advance knowledge and consent of all other parties.[2] When the communication relates to matters of substance in contention between the parties with a view to influence the decision-making of the court, prior knowledge and consent is imperative.[3]
That said, the efficient administration of justice can sometimes be served by such communications, and instances of this grow as technological advancements increase the ways practitioners can communicate with (and indeed appear in) courts and tribunals. It is imperative that these methods are utilised appropriately, and not exploited to unfairly advance a client’s claim (or simply for the convenience of the solicitor and/or client).
4. When is communication in the other party’s absence acceptable?
Rule 22.5 of the ASCR allows a party to contact the court in the opponent’s absence in certain specific circumstances, although best practice is to avoid doing so if at all possible. The exceptions to this rule are covered below, but it should be noted that compliance with rules 22.5.2 or 22.7 will not excuse a practitioner from compliance with rule 22.6, which requires the opponent to be advised of the content of any communication with the court under these exceptions.
4.1 Ex Parte applications
The rules specifically acknowledge that an Ex Parte application may be made in the absence of the opponent, although notice should be provided to the opponent at the earliest opportunity, and such communications reserved for urgent circumstances. In addition, the opponent should be provided with copies of all relevant material at an appropriate time after the application is made.[4]
4.2 Administrative/housekeeping matters
A practitioner must not communicate with the court about “any matter of substance in connection with the current proceedings”, in the absence of their opponent. Communications that are merely dealing with administrative, housekeeping or largely mechanical processes in relation to a matter can be made without the advance knowledge and consent of an opponent.[5] However, other parties to the matter must be apprised of the communication, preferably by providing a copy of the communication and any materials which accompany it.[6]
Caution should be taken in this regard, however, as to whether or not a particular communication goes beyond mere administrative or procedural matters will depend on the particular circumstances. As noted by the Full Court of the Federal Court of Appeal in John Holland Rail Pty Ltd v Comcare (at [22]):
Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason…[7]
4.3 When the opponent has consented
Rule 22.5.2 of the ASCR specifically provides for communication with the court in the absence of other parties, in circumstances where the other parties have consented to the communication. Such communications are not without restrictions.
The communication can only be within the terms of the specifically expressed consent, which must be obtained prior to sending the communication, and practitioners seeking such consent should ensure that it is precise and that the parties agree as to the limits of the consent.[8] Consent of this nature should always be evidenced in writing.
Practitioners should also note that unilaterally suggesting that the absence of any objection from the practitioner within a certain period of time will be deemed to be consent or simply copying a party into an email to the court does not establish consent,[9] and in any event breaches the duty to the court and to the administration of justice.[10]
If the consent of the other party or parties cannot be obtained, the party seeking to contact the court should make a formal application to do so and have the matter heard in open court.[11]
NB: In circumstances where an opponent or party is self-represented, particular care should be taken when obtaining consent, and reference to QLS’ Guidance Statement No.09 Dealing with Self-represented Litigants may be of assistance.
4.4 When the court requires
It is open to a court to require communication as it sees fit, as provided for in rule 22.5.1 ASCR. In practice this will likely involve one of the exceptions above already being engaged, and in any event unless the court has specifically ordered otherwise, compliance with rule 22.6 remains a requirement.
Practitioners relying on this exemption should ensure that the court’s request is unambiguous and clarify immediately with the court if any part of the request is unclear.
4.5 Practice Directions
It is open to a court or tribunal to regulate communications with the court via practice directions, and practitioners should familiarise themselves with the requirements of any relevant practice directions as a matter of course (eg: Supreme Court of Queensland Practice Direction No 1 of 2023: Commercial List, 16 January 2023, para 35-37).
5. Does this only apply to communications with courts?
The purpose of the prohibition against communicating with the court in the absence of an opponent is to ensure the appearance of integrity in the administration of justice, and to preserve judicial independence. To that end, the courts have interpreted the requirement broadly, and it is likely that it will apply to any entity or person carrying out a judicial or similar function.
What constitutes a relevant function will depend on the circumstances and it should be noted that courts have applied the prohibition to contact broadly, with judge’s associates,[12] costs assessors,[13] and regulatory councils being included.[14] Prudence would counsel that practitioners assume the prohibition applies to all courts, tribunals and regulatory bodies, and proceed accordingly.
6. More Information
Solicitors are also referred to The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
Should I communicate with the Court?
For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.[15]
[1] Barristers are referred to the Bar Association of Queensland, Barristers’ Conduct Rules (at 23 February 2018) r 75 - 77.
[2] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 ('Contract Mining Services’).
[3] Evans v Queensland Law Society [2022] QCAT 284, 17 [60].
[4] Contract Mining Services (n 2) [24] (Livesey J).
[5] Southwell v Jackson [2012] QDC 65, 6-7 [13]-[15] (‘Southwell’).
[6] Contract Mining Services (n 2) [28] (Livesey J).
[7] [2011] FCAFC 34, 9 [22].
[8] G Dal Pont, Lawyers’ Professional Responsibility (Thomas Reuters, 7th edition, 2021) 606 [17.190].
[9] Legal Services Commissioner v Trost [2019] QCAT 357.
[10] Ibid. See also Angus Mainnis, ‘I hope this email finds you well (aware of your obligations under the Rules)’ (2020) 63 Law Society Journal, 82.
[11] Sirola & Sirola [2016] FamCA 620, [15].
[12] R v Fisher [2009] 22 VR 343, [38].
[13] Southwell (n 5), 12 [39] (McGill DCJ).
[14] Ng v Pharmacy Council of New South Wales [2022] NSWCATOD 49.
[15] ‘QLS Senior Counsellors’, Queensland Law Society (Web Page) <http://www.qls.com.au/Becoming_a_member/Member_benefits/Professional_benefits/QLS_Senior_Counsellors>.