MISC MATTERS

Question 1

The court has the inherent jurisdiction to restrain lawyers from acting. This can occur in the following five circumstances:-

Answer 1

(1) Where it would breach duty of confidence owed to a former client
(2) breach a duty owed to the current client
(3) Where it doubts a lawyers capacity to exercise independent judgment
(4) Where the barrister may be a material witness r 95 and r 99 situation
(5) where the client is placing duty to the client ahead of the duty to the court

Question 2

What is the test for an application for a lawyer to be restrained from acting?

What will the court consider?

Answer 2

Would a fair minded reasonably informed person find it subversive to the administration of justice to allow the representation to continue.

The court will exercise care because restraining interferes with a persons choice of lawyer. The timing of the application in seeking disqualification will speak to tactical concerns and whether it’s timing would cause prejudice to the respondent by causing delay and inconvenience etc

applications that cause inconvenience and delay proceedings.

Question 3

A lawyers words or actions that interfere with the administration of justice or otherwise disregard the court’s authority can result in contempt of court.

The rationale for the contempt power is to vindicate the court and it’s proceedings

True or false?

Answer 3

True

Question 4

A barrister has been approached to act for a director of a company regarding unfair dismissal.

The barrister previously acted for the company having received instructions from the now former director regarding potential breaches of directors duties…which was the basis upon the directors removal.

Should the barrister accept the brief?

Answer 4

r 21(d); r 95(a); the cab rank rule does not apply because the barrister is obligated to refuse the brief because the barrister has confidential information to the former client which is mateiral to the prospective clients case and the former client has not given consent to it’s use and disclourse. Should the barrister accept disciplunary action may follow or an application to the court to restrain from acting.

Question 5

A client asks you to provide advice on how to commit tax evasion.

Discuss

Answer 5

r 12; a barrister must not advice client in how to commit unlawful activities. This can generate criminal, civil, and disciplinary action for the barrister (s 227).

Question 6

What is an undertaking?

Answer 6

An undertaking is a promise to do or refrain from doing something which can be given to the court, another lawyer, or third party.

They will be enforced by the courts because without them they are worthless.

Strict compliance is expected.

Question 7

What are the potential consequences for failing to fulfill undertaking given to the court?

Answer 7

Undertaking given to the court (1) contempt of court (2) the court exercise inherent jurisdiction to order the lawyer pay compensation to a person who suffers loss from the breach (3) disciplinary action

Question 8

What are the potential consequences for failing to fulfill undertaking given to a third party or another lawyer?

Answer 8

Maybe claim for (1) breach of contract, (2) if assurance given was false or misleading liability in tort or s 18 ACL (3) court’s inherent jurisdiction to order undertaking be enforced or compensation paid (4) disciplinary action

Question 9

As a barrister you personally undertake to file material in the court before 14 June 2026.

What are the consequences if you fail to do so?

Answer 9

Unfulfilled undertaking given to the court can be (1) contempt of court (2) court may in its inherent jurisdiction award compensation to other party for any losses and (3) disciplinary action.

Question 10

When giving an undertaking on behalf of the client what must the barrister do?

Answer 10

Barrister should use clear language that it is the client who gives the undertaking, barrister should not allow an undertaking to be given where the client can not personally control the fulfillment of the undertaking, and should advise the client of the consequences of failing to complete the undertaking.

Question 11

The opposite party has failed to complete an undertaking to remedy work as a part of a contractual dispute. Your client has suffered losses. Discuss.

Answer 11

r 39 - advise client that we can apply to the court to have the other side fulfill the undertaking given, or the court may in it’s inherent jurisdiction award compensation be paid to us for losses suffered.

Question 12

Can the court release a lawyer from an undertaking?

Answer 12

yes the court has inherent juridction to release a lawyer from an undertaking where the lawyer was deceived into giving the undertaking or otherwise due to unforeseen events make it’s completion impossible.

Question 13

Your client has requested that you provide an undertaking on their behalf.

What do you do?

Answer 13

The barrister should (1) draft the proposed undertaking in writing with clear, precise, and unambiguous terms (2) should state clearly that it my client undertakes to avoid personal liability (3) explain to the client consequences of failing to comply and should only give undertaking where fulfillment is completely within control.

Question 14

Are some examples of an abuse of process?

Answer 14

(1) baseless allegations of fact -
(2) baseless allegations of criminality, fraud, and other misconduct (disciplinary proceedings, and personal costs against barrister)
(3) baseless allegations in family law proceedings
(4) recklessly naming third parties
(5) wasting court time and money in court proceedings (e.g. legal strategy of obstruction and delay) (personal costs for barrister)
(6) commencing civil proceedings which have no prospect of success - barrister must investigate where the client has a good cause of action and if not must not commence proceedings

Question 15

When and when doesn’t the Harman undertaking apply?

Answer 15

Where one party is compelled by the court to disclose documentation to another party.

It does not apply if the document was read into evidence in open court.

Question 16

What are consequences of breaching the implied Harman undertaking?

Answer 16

Contempt of court, proceedings based on documents covered by undertaking struck out, and disciplinary proceedings.

Question 17

Can the opponent give consent to release a party from the implied harman undertaking?

Answer 17

no - only the court can release a party given it is an undertaking given to the court.

Question 18

Where a party wishes to be released from the implied harman undertaking what must it do?

Answer 18

The party must apply to the court in which the obligation is owed which will exercise it’s discretion to release only in special circumstances.

Question 19

harman; hearn v street;

Discuss

Answer 19

a party gives an implied undertaking to the court that documents or information obtained from compelled disclosure will only be used for the purpose which they are obtained unless leave of the court is given or used in open court. The party must apply to court which obligation is owed to release from undertaking, and breach of undertaking may mean contempt of court, and proceedings based on documents could be struck out.

Question 20

Examples of breach of harman undertaking

Some examples of when a breach of the implied undertaking might occur includes:

(a) using the documents or information from one proceeding to progress a different proceeding, even if the parties and causes of action are the same;

(b) using the documents or information to add a new claim to existing proceedings that is fundamentally different to that already pleaded;

(c) providing documents to the media;

(d) using documents in the conduct of businesses or other activities so as to gain a competitive advantage; and

(e) providing documents to an external third party

Question 21

What are the potential consequences of accepting a brief where the barrister does not have the sufficient skill or experience?

Answer 21

The barrister may be subject to disciplinary proceedings (s 227(2) LPA) should the barrister’s practice of law that falls
short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

Question 22

You are a criminal barrister. An instructing solicitor offers you a brief to appear on a extremely complex property law application before the Court of Appeal. You are short on work, and wanting to build your career experience.

Should you accept the brief?

Answer 22

r 21; r 37; the barrister should not accept the brief, and is not obligated under the cab rank rule to accept the brief given it is out of the barristers skill, and experience. The barrister risks being unable to protect the client’s interest and might be subject to disciplinary proceedings (s 227 LPA) for being unable to perform legal services to a level which a member of the public is to expect of a competent and diligent lawyer.

Question 23

You are a junior barrister who practices in personal injuries law. Your chambers KC has asked for you to junior him on a complex criminal trial notwithstanding you have no experience in this area. You accept. The KC becomes hospitalized due to a tragic accident. The trial is in 3 months time and you are aware another experienced barrister from your chambers is available. You want to keep the brief running it solo to get some experience, and some fees.

Should you retain the brief?

Answer 23

r 21; r 39; r 101; the barrister should not retain the brief to defend the serious criminal charge not in clients best interests. The barrister however, cannot return the brief to defend a serious criminal charge unless the barrister has reasonable grounds to believe the circumstances are compelling and exceptional and there is enough time for someone to take over before the hearing. The loss of the KC coupled with the barristers inexperience would likely be considered exceptional and compelling and there is another barrister who can take over. The barrister given in experience runs the risk of being unable to protect clients interest by not being able to provide competent and diligent legal services excepted by a member of the community and disciplinary proceedings (s 227 LPA).

Question 24

When might a barrister be liable to a personal costs order?

Answer 24

(1) where the barrister commences baseless or meritless proceedings which constitutes an abuse of process
(2) where a barrister has caused unnecessary delay resulting in costs
(3) where an abuse of process has occurred: Where a party uses a court process or proceed, not contrary to the literal terms of the rule, but it results in a manifest unfairness or brings the proper administration of justice into disrepute.

Question 25

What is a barrister's 'advocates immunity'? and when does it not apply?

Answer 25

A barrister has an immunity from actions in negligence, and defamation when drawing or settling pleadings, or presenting a case in court, however this requires a barrister to make sure there is a proper basis for making allegations. The failure to do so will be an abuse of process, and the immunity will not apply.

Question 26

Do the barrister conduct rules apply to a barrister employed by LAQ or ATSILS?

Answer 26

r 9(c)(iii) yes they do save for they are exempt from r 16-24B, r 95-99, and 101-106 whilst acting in the employment of legal aid.