21. Responsible use of court process and privilege

1. A solicitor must take care to ensure that the solicitor's advice to invoke the coercive powers of a court:
   1. is reasonably justified by the material then available to the solicitor;
   2. is appropriate for the robust advancement of the client's case on its merits;
   3. is not given principally in order to harass or embarrass a person; and
   4. is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.
2. A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
   1. are reasonably justified by the material then available to the solicitor;
   2. are appropriate for the robust advancement of the client's case on its merits; and
   3. are not made principally in order to harass or embarrass a person.
3. A solicitor must not allege any matter of fact in:
   1. any court document settled by the solicitor;
   2. any submission during any hearing;
   3. the course of an opening address; or
   4. the course of a closing address or submission on the evidence,
      unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.
4. A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:
   1. available material by which the allegation could be supported provides a proper basis for it; and
   2. the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
5. A solicitor must not make a suggestion in cross-examination on credit unless the solicitor believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
6. A solicitor may regard the opinion of an instructing solicitor that material which is available to the instructing solicitor is credible, being material which appears to the solicitor from its nature to support an allegation to which Rules 21.1, 21.2, 21.3 and 21.4 apply as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).
7. A solicitor who has instructions which justify submissions for the client in mitigation of the client's criminality which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person's identity directly or indirectly unless the solicitor believes on reasonable grounds that such disclosure is necessary for the proper conduct of the client's case.
8. Without limiting the generality of Rule 21.2, in proceedings in which an allegation of domestic or family violence, sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
   1. a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
      1. to mislead or confuse the witness; or
      2. to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
   2. a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
9. A solicitor does not infringe rule 21.8 merely because:
   1. the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of a statement made by the witness, or
   2. the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

Commentary

21.1 Responsible use of court process

A solicitor must ensure that the litigation is reasonably justified on the merits and an advancement of the client's case, and is not made principally to harass someone or gain some collateral advantage: Rule 21.1. The rule supports the duty not to abuse court processes: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. A solicitor may face disciplinary proceedings or a personal costs order for lending himself or herself to an abuse of the court's process.

Cases without merit. A solicitor must believe that the factual material available provides reasonable grounds (a 'proper basis') for invoking the coercive powers of a court. They must apply independent judgment (see Rule 17.2) to decide whether the points the client wishes to argue can be argued: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683. In Steindl, Davies JA said (at 690) that '…it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable'. However, Williams JA at 692 (with Phillipides J agreed) cited with approval Medcalf v Mardell [2003] 1 AC 120: '…it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is also entitled to be heard…The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process'.

Collateral advantage. Proceedings should 'not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which proceedings are properly designed and intended': Re Majory [1955] Ch 600.

21.2 Baseless aspersions or allegations

Similarly, allegations or suggestions under privilege must be reasonably justified and an advancement of the client's case, and not made principally to harass someone: Rule 21.2, see also Rule 29.3. Lawyers must maintain standards of decency and fairness. They may 'speak out fearlessly, to denounce some person or the conduct of some person' but, due to the 'ruinous consequences' to the person attacked, cannot introduce damaging matters which cannot be substantiated or justified by evidence: Clyne v NSW Bar Association (1960) 104 CLR 186 ('Clyne'). The reasoning in Clyne stands behind Rules 21.1 to 21.4, breach of which may give rise to disciplinary proceedings.

21.4 Allegations of criminality, fraud or other serious misconduct

Allegations of fraud or other misconduct should not be made lightly: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Clyne v New South Wales Bar Association (1960) 104 CLR 186. Professional disciplinary consequences may follow for lawyers who do not 'take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging or pleading fraud': Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201.

21.5 Witnesses

Solicitors face censure if they put to a witness propositions that have no basis in evidence or are irrelevant to the witness's credibility: Vella v R (1990) 47 A Crim R 119, 124 (Malcolm CJ).

21.8 Allegation of domestic violence

This rule has been amended to extend to allegations of domestic or family violence.