19. Duty to the court

1. A solicitor must not deceive or knowingly or recklessly mislead the court.
2. A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
3. A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
4. A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which: 
   1. are within the solicitor's knowledge; 
   2. are not protected by legal professional privilege; and
   3. the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
5. A solicitor who has knowledge of matters which are within Rule 19.4 must:
   1. seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under Rule 19.4; and
   2. if the client does not waive the privilege as sought by the solicitor:
      1. must inform the client of the client's responsibility to authorise such disclosure and the possible consequences of not doing so; and
      2. must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.
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:
   1. any binding authority;
   2. where there is no binding authority, any authority decided by an Australian appellate court; and
   3. any applicable legislation, known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client's case.
7. A solicitor need not inform the court of matters within Rule 19.6 at a time when the opponent tells the court that the opponent's whole case will be withdrawn or the opponent will consent to final judgement in favour of the client, unless the appropriate time for the solicitor to have informed the court of such matters in the ordinary course has already arrived or passed.
8. A solicitor who becomes aware of matters within Rule 19.6 after judgement or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
   1. a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or
   2. requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
9. A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.
10. A solicitor who knows or suspects that the prosecution is unaware of the client's previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.
11. A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.
12. A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

Commentary

19.1 Duty not to deceive or mislead the court

A lawyer must put any argument reasonably open to the client: Tuckiar v The King (1934) 52 CLR 335, 346. However, a lawyer who deceives or knowingly or recklessly misleads the court undermines the confidence that the court and fellow lawyers can place in that lawyer's conduct: New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193, 205. It is also conduct inconsistent with a lawyer's duties of candour and honesty (see Rule 4) and so will trigger the court's disciplinary jurisdiction: Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56, 58.

Truth of client's statements.  A solicitor should not lend their assistance to a client if they are satisfied that the initiation or further prosecution of a claim is in bad faith or for an ulterior purpose or if the proceedings would be, or have become an abuse of process of the court or unjustifiably oppressive. Solicitors may typically presume that their client's instructions are truthful unless it becomes known the initiation of proceedings is an abuse of process: Orchard v South Eastern Electricity Board [1987] QB 565, 572. However, the lawyers' overriding duty to the court requires that the court is not misled as to the facts. This may warrant 'a proper degree of caution, even mild scepticism, to their client's narrative of events.'⁶⁶ This mild scepticism might lead the lawyer to 'take reasonable steps to verify the client's contentions,' especially where serious allegations are made towards another person.⁶⁷ A lawyer should 'press' the client until uncertainty about instructions is removed and, in the interim, refuse to make the 'potentially misleading' submissions in court: Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839, [2] ('Kavia'). If the client persists, the lawyer may have 'just cause' to terminate the retainer: Kavia and see Rule 13. 

19.2 Correct a misleading statement

Rule 19.2 mirrors the common law obligation to correct an error, unintentional or otherwise, at the earliest available opportunity: Myers v Elman [1940] AC 282, 294. The duty was held to apply in Perpetual Trustee Company Limited v Cowley [2010] QSC 65, [17], [132]. The solicitor had stated in his affidavit that his client's mortgage payments had been made. That was a misleading statement. The court accepted the solicitor had not made it knowingly, but as soon as he realised or must have realised that the statement was misleading he was under an obligation to the court to take all necessary steps to correct it: at [132].

Where a solicitor has entered the fray and given evidence or has made oral or written submissions, the solicitor's obligation to correct a misleading statement is not subject to instructions. Having made the statement, the solicitor must correct it notwithstanding their client's objections.

19.3 Errors of opponents

Rule 19.3 limits the duties described in Rule 19.1 and Rule 19.2, so that the solicitor need not correct a statement of the opponent or another person made to the court. The rule reflects the common law that a solicitor "would fail in his duty to his own client were he to supplement the deficiencies in his opponent's evidence": Khudados v Hayden [2007] EWCA Civ 1316, [38].

19.4 Full disclosure in ex parte applications

In making ex parte applications, a solicitor must disclose all adverse matters that they know and that are not protected by legal professional privilege. The rule reflects the common law duty to show the utmost fairness and good faith, and see that all relevant matters, whether for or against the application, are brought to the attention of the court: Re Cooke (1889) 5 TLR 407, 409. The solicitor must provide 'all the material facts which [the absent] party would presumably have brought forward in his defence to that application': Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 682. Due to the 'high standard of candour and responsibility' expected, a failure to make full disclosure confers upon the other party the right to apply for discharge of the order made: Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 667.⁶⁸ Refer to Rule 22.5 ASCR with respect to communications with the court outside an ex parte application or hearing.

19.6  Duty not to withhold authorities

A solicitor must ensure the court is informed of all relevant legislation, binding authority and Australian appellate court decision, unless the opponent has conceded the case as contemplated by Rule 19.7. This is to assist the court to apply the relevant law. Lawyers owe a duty not to withhold authorities 'which may tell against his clients but which the law or the standards of his profession require him to produce': Rondel v Worsley [1969] 1 AC 191, 227 – 228, cited with approval in Giannarelli v Wraith (1989) 165 CLR 543, 556.

Rule 19.8 extends the duty to where judgment has been reserved and remains pending. If the solicitor becomes aware of a relevant authority, they must inform the court by letter or relisting the matter. In both cases, the opponent must first be consulted. Rule 19.9 applies only in criminal law matters to preserve certain rulings of inadmissible evidence.

19.10  Client's previous convictions

At common law, the defence is not under a positive duty to disclose prior convictions: Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289, 297. Doing so may breach the solicitor's duty to act in a client's best interests (Rule 4.1.1) and the duty of confidentiality to the client (Rule 9.1). It is incompatible with those duties for the solicitor in an adversarial system 'to bring forward everything adverse to the offender's interests on sentencing': R v Bourchas [2002] NSWCA 373. The court decides cases based on the evidence before it, and so it is no miscarriage of justice if the prosecutor fails to introduce an accused's previous convictions and the defence does not correct it: Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26, 28 ('Sandercock'). Accordingly, a prior conviction should not be disclosed to the prosecutor or the court without the client's instructions.

However, as stated in Sandercock at 28, "where a party deliberately misleads the court, other remedies may exist. For example, if fraud is practised upon the court a remedy is available either by order to review or by certiorari: Hallanan v Campbell; ex parte Campbell (No 2) [1964] Qd R 336". This general principle shifts in circumstances where a defence solicitor suggests otherwise, for example, by 'asking a prosecution witness whether there are previous convictions, in the hope of a negative answer' or submitting that 'his client is a man of good character'. In these circumstances, a solicitor would be breaching his duty not to mislead the court (Rule 19.1): Tombling at 297. Rule 19.10 therefore prohibits such questions, to protect the accused.

19.11 Court's misapprehension as to the effect of an order

The duty not to mislead the court and opponents 'continues … until the judge has given judgment': Vernon v Bosley (No 2) [1999] QB 18, 38. However, if the court is making an order with a misapprehension as to its effect, a solicitor must so inform the court: Rule 19.11.

19.12 Duty to correct mistaken concessions

Notwithstanding Rule 19.3, Rule 19.12 requires a solicitor to alert the opponent and, if necessary, inform the court if the opponent in a civil trial makes any express concession about –

• evidence;
• case law; or
• legislation

that the solicitor knows is contrary to the true position and believes has been made by mistake.

66 G E Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 354-5. 

67 Ibid, cited with approval by Santow J in Kavia.

68 See also, Gold Ribbon (Accountants) Pty Ltd (in Liq) v Sheers [2003] 1 Qd R 683; Re South Down Packers Pty Ltd [1984] 2 Qd R 559. In relation to the duty of disclosure on an Anton Piller application see Lego Australia v Paraggio (1993) 44 FCR 151; International Entertainment New Zealand Ltd v Lewis [1998] 1 IPR 162; Universal Music Australia Pty Ltd v Sharman License Holdings Limited (2004) 205 ALR 319.