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Howard, Kathryn; Tighe, Alexandra --- "Electronic communications with the court: practitioner 'dos' and 'don'ts'" [2016] PrecedentAULA 11; (2016) 132 Precedent 44

ELECTRONIC COMMUNICATIONS WITH THE COURT: PRACTITIONER “DOs” & “DON’Ts”

By Kathryn Howard and Alexandra Tighe

In the modern era of electronic communication, and with email such a practical and efficient means of communication, it is easy for a lawyer to unwittingly contravene the rules against improper communications with a court.

A recent decision in the NSW Supreme Court delivers a timely reminder for lawyers about how and when it is appropriate to communicate with a court by email.

In FAL Management Group Pty Ltd v Denham Constructions [2015] NSWSC 1035, McDougall J was highly critical of a solicitor who sent an email to his Honour’s Associate, without having first obtained the prior consent, or knowledge, of the other party to the proceeding.

In that case, the solicitor sent an email (copied to the other party) seeking orders for leave to serve subpoenas on short notice. The email set out submissions containing reasons why the subpoenas were required and contained contentious matters.

That the solicitor had copied the other party into the email to the Associate only rectified the deficiency of the lawyer by a ‘small and insignificant extent’ in his Honour’s view.

In his decision, his Honour stated:

‘It is not appropriate for a party to litigation, or its legal advisers, to communicate with the Court, except in very limited circumstances, without the prior knowledge and consent of the other party to that litigation.’[1] (emphasis added)

His Honour cited the habit of communications with the court containing matters related to substantive issues as ‘intolerable’ and invited submissions about why his Honour should not refer the correspondence to the Legal Services Commissioner for investigation.

Ultimately his Honour did not make the referral to the Commissioner, but the mere threat to do so reinforces the importance for lawyers to exercise extreme care when communicating with a court.

The underlying principle is that, while communication between lawyers and Associates is necessary for the smooth running of the court, the impartiality and integrity of the court must not be undermined by such exchanges.[2]

A practitioner’s overriding duty, and a core ethical obligation of legal practice, is a duty to respect the court and to ensure its impartiality. Even the most innocuous and well-intended email from a lawyer to an associate may give rise to an allegation that the party has attempted to influence the conduct or outcome of the case before the judge.

It can be difficult to determine whether a matter in an email to an associate is procedural or substantive. This is particularly the case in a number of jurisdictions which operate judge-managed lists or docket systems, where the judge often takes an active role in the preliminary interlocutory steps before trial. It is common for judges to receive affidavits and bundles of materials for tender in advance of a hearing or interlocutory application, which the judge will often read in advance of the parties’ appearance to expedite the administration of justice. The danger with this practice is that much of that material may never be tested in open court or make its way into evidence, and yet it has come to the judge’s attention.

The Commercial Court of the Victorian Supreme Court has issued a Practice Note,[3] which provides a helpful guide on the sorts of matters that lawyers should avoid enquiring about (even with the consent of your opponent):

1. Whether the judge is likely to adjourn the matter on the papers;

2. The timeframe within which the judge is listing matters for trial;

3. Whether the proceeding will be given an early trial date, within a specified timeframe or before the completion of pre-trial steps; or

4. Whether the judge will find another judge to hear the matter at an early date.

Queries such as these should be made of the judge in open court with all parties present.

To emphasise the importance of ensuring your communication with the court is properly made, possible consequences for failure to exercise caution when emailing an associate include:

1. An application for the judge to recuse him or herself on the grounds of reasonable apprehension of bias on the part of the judge;[4]

2. Possible findings of professional misconduct, and/or potential investigation by the relevant Legal Services Commissioner in your state;[5]

3. Risk of a finding of contempt of court;[6] and/or

4. Risk of costs consequences against you personally.[7]

SOME GOLDEN RULES

DO make sure that your communication is open and uncontroversial.

DO contact all parties to the litigation and advise them of your intended email communication.

DO give the other parties a draft of the actual wording you propose to forward to the associate.

DO provide the other parties the opportunity to consent to the proposed email before it is sent.

DO inform the associate that the other parties have provided consent to the communication.

DO keep your email to procedural matters only (such as having the matter listed for urgent directions) if another party won’t provide their consent to the communication being sent as drafted.

DO exercise extreme caution when emailing an associate on an ex-parte or unrepresented litigant matters.

DO copy all parties into your email when you send it.

DO exercise courtesy and civility in all communications with the associate and other parties.

DON’T email an associate just to inform them that another party has failed to comply with the court’s orders or seek to ‘point score’ against your opponent.

DON’T allow the associate to become part of the dispute.

DON’T think that just by copying the email to the associate to all other parties you have discharged your obligations.

DON’T attach submissions about why the orders are sought if you have not received the prior consent of the other parties to do so.

DON’T just send the email anyway if your opponent refuses to consent to it.

Kathryn Howard is a Partner at Holding Redlich in the Dispute Resolution & Litigation Group. PHONE (03) 9321 9726 EMAILkathryn.howard@holdingredlich.com.

Alexandra Tighe is a Senior Associate at Holding Redlich in the Dispute Resolution & Litigation Group. PHONE (03) 9321 9742 EMAIL alexandra.tighe@holdingredlich.com.


[1] FAL Management Group Pty Ltd v Denham Constructions [2015] NSWSC 1035.

[2] R v Fisher [2009] VSCA 100; Supreme Court of Victoria, Commercial Court, Practice Note 6/2009.

[3] Supreme Court of Victoria Practice Note Number 6 of 2009.

[4] John Holland Rail Pty Ltd v Comcare [2001] FCAFC 34; R v Fisher (2009) VR 343.

[5] FALI Management Group; John Holland Rail.

[6] Re JRL; Ex Parte CJL [1986] HCA 39; (1986) 161 CLR 342.

[7] Federal Court Act: s37N and corresponding State Civil Procedure Acts and The Uniform Civil Procedure Rules.



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