Cases

Question 1

Explain Day v Pershier Blue in an example answer

Answer 1

r 70-71 day v pershier blue: the barrister not condone the conferring with more than one lay witness regarding a likely contentious issue at hearing where such a conferral would impact their evidence unless special circumstances or r 71 matter.

This protects the integrity of evidence by (1) avoiding contamination and allegations of collusion, and (2) protecting independence of witness. This process is improper and seriously undermines the process by which evidence is taken. May result in exclusion of evidence, mistrial, disciplinary action, and barrister tortious liability to client.

Question 1

Explain Bale v Mills in an example answer

Answer 1

The barrister has not right to place further material before the court now that the decision is reserved. This protects the open administration of justice. To do so, will result in the court disregarding the material, wasted court resource, and potential disciplinary action. The proper course is to seek instructions to relist the matter for mention so that the record can be enlarged.

r 64; bale v mills - barrister must not allege matters of fact amounting to criminality etc unless proper factual basis and the client is aware of the consequences should the allegations not be made out.

Question 2

Explain Ken Tugrul v tarrants financial consultants in an example answer

Answer 2

r 53; ken tugrul v tarrants finanical consultants - barrister must not communicate with the court regarding a matter of substance, sending a report, for a current proceeding unless consent is provided or court has first invited communication or trivial matter of practice. The rule protects the integrity of the judicial officer by not exposing to undebated material, apprehended basis, and guarding familiarity. The consequences of doing so is potential recusal application, wasted court time and costs, and potential disciplinary action to barrister. The court will simply disregard material sent should have the matter relisted for mention so that the record can be enlarged.

Question 3

Explain LSC v Mullins in an example answer

Answer 3

r 48-49; LSC v Mullins: Barrister must not rely upon report with incorrect life expectancy which is material to the negotiation because barrister has a duty to not mislead opponent regarding material facts and reliance on the report would be fraudulent deception. Any settlement which is founded on misleading information can be (1) vitiated by the courts (2) potential liability for losses in contract, tort (deceit), or statute (s 18 ACL) and (3) barrister disciplinary proceedings.

Must seek instructions to not rely upon report, seek an adjournment of meditation to obtain new report for disclosure, but otherwise not disclosure confidential information and return brief if client does not accept instructions (r 99(g)).

Question 4

Explain Harman v FCT in an example answer

Answer 4

Harmon: The party has receive that information from the court during compelled disclosure and provides an implied undertaking to only use that material for purpose sufficiently connected to current proceeding. The rationale being that a parties privacy should not be prejudiced more than necessary in the proceeding. Breach of the undertaking can be (1) contempt of court (2) inherent jurisdiction to award costs against barrister and (3) any proceeding founded on information subject to the implied undertaking struck out…however party can seek leave to use that material.

Question 5

Tri-star petrol

Answer 5

tri star petrol - The party who is compelled to give documents which contain confidential information can apply the court to have a party provide an expressed undertaking, in addition to the implied harmon undertaking, to enforce importance of proper use of the information for a purpose sufficiency connected to the proceedings and provide additional protections the court will only grant in exceptional circumstances balancing the interests of both parties (hearn v street)