22. Communication with opponents

1. A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).
2. A solicitor must take all necessary steps to correct any false or misleading statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false or misleading.
3. A solicitor will not have made a false or misleading statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.
4. A solicitor must not confer or deal with any party represented by or to the knowledge of the solicitor indemnified by an insurer, unless the party and the insurer have signified willingness to that course.
5. A solicitor 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:
   1. the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
   2. the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
6. A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.
7. A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
8. A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

Commentary

22.1 False or misleading statements to opponents

Rules 22.1 to 22.3 apply to negotiations. See Legal Services Commissioner v Mullins [2006] LPT 12; Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 and Legal Services Commissioner v Garrett [2009] LPT 12.

22.4 Parties represented by insurers

A solicitor must get the consent of both the party and the insurer before communicating with the insured party.

22.5 Communication with the Court

A solicitor cannot communicate in the opponent's absence with the court on matters of substance unless the opponent's solicitor either has given consent or has been given the opportunity to respond before the intended communications: Rules 22.5-7. Communications with judges' chambers 'which the other parties do not know of, or have not approved of, are improper and should not occur': Porter v Australian Prudential Regulation Authority [2009] FCA 1148, [20]. The few exceptions include ex parte applications and non-contentious housekeeping or logistical questions: Hughes v Janrule Pty Ltd [2011] ACTCA 23, [27].

Rules 22.5 to 22.7 reflect the "fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other": Re JRL; Ex parte CJL (1986) 161 CLR 342, 346. In a recent article it has been observed that:

"The assessment of whether an impugned communication concerns 'a matter of substance' must be understood in the context of the 'current proceedings' to which it is connected."⁷¹

There will be few occasions where a communications in terms of Rule 25.5.1 cannot be made without compliance with Rule 25.5.2. Compliance with Rules 25.5.2 and 22.7 will not remove the requirement of compliance with Rule 22.6.⁷²

Courts have criticised parties for ex parte communications with a tribunal.⁷³

22.8 Notices of adjournment

A solicitor has an obligation to inform their opponent and the court as soon as possible that there will be an application to adjourn any hearing. This is also reflected in the duty to inform the court at the earliest reasonable opportunity when a listed matter settles.⁷⁴

Whilst providing a copy of communication with the court to one's opponent is good practice, it will not cure failure to obtain consent in advance.

71 Richard Lilley SC and Justin Carter 'Communications with the Court' (2013) 87 ALJ 121, 122.

72 Ibid 122.

73 See R v Fisher (2009) 22 VR 343; John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221.

74 Address by the Hon Justice Margaret McMurdo AC to Cooper Grace Ward Technical Excellence Program 3 September 2013.