Rights and Obligations of Lawyers: Natural Justice, Case Management and Efficiency.

Principlesof natural justice can often conflict with case management. Lawyers have an important role to play in this issue. But how do the Courts strike the balance. And what role can the lawyer play? Does Counsel have a right to address the Court? Or, to put it a different way, does Counsel have an obligation to address the Court, and in what manner? In the rising age of case management and when Courts are so under-resourced, lawyers are encouraged to be as brief as possible, and sometimes judges have an obligation to cut them short.

But there are other principles which need to be considered.

Natural Justice

In the NSWCA decision of Escobar v Spindaleri (1986) 7 NSWLR 51 , Kirby P (as he then was) explained the importance of allowing counsel to make submissions and said that ‘premature termination of evidence or argument will attract the inter­vention of the appeal court.’¹ His Honour went on to refer to:

‘numerous cases both in England and Australia [which] underline the importance of giving a party, or those who represent him, a reasonable opportunity to complete the case they bring and to endeavour to persuade the court to the merits of that case: see, eg, Mayes v Mayes [1971] 1 WLR 679; [1971] 2 All ER 397.’²

In Stead v State Government Insurance Commission(1986) 67 ALR 21, a unanimous High Court clearly stated that natural justice required the Court to give Counsel an opportunity to make submissions to the Court, particularly in relation to evidence, and that such denial of natural justice could lead to a retrial.³ In fact, so important is this right to natural justice that all a party needs to show for a retrial is that the denial deprived him of the possibility of a successful outcome.

In that case the High Court endorsed the oft-citedcase of Lord Denning in Jones v National Coal Board [1957] 2 QB 55, where it was said:

 ‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge.… No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’⁵

 Is ‘efficiency’ a premise for refusing to hear Counsel’s submissions and for other various denials of natural justice?

In Glasscock the trial judge’s attitude was:

 ‘… any responsible member of the profession would not be wasting the court’s time with spurious and unnecessary and virtually offensive submissions of that kind … a judge is entitled to clarify matters and once there is a reference to a particular area a judge is entitled to find out where the truth lies. I have done no more than that. I won’t hear you further.’⁶

Yet as the Court of Appeal of New South Wales said making such submissions is the very role of Counsel. The Court of Appeal responded:

 ‘Counsel was doing no more than his duty in representing the defendant in the light of his instructions and doing so with courage and respectful frankness. Courts have frequently acknowledged that counsel are expected and required to act in this way.’⁷

 The similarities in Glasscock extend to the judge cross-examining a witness.⁸ The Court of Appeal commented that caution needs to be exercised with respect to judicial intervention which is purportedly on the grounds of efficiency:

‘In my opinion such a motive cannot justify or excuse a trial judge in “taking over” from one of the parties either the whole or a significant part of the task of adducing evidence in chief from a witness. See Jones v National Coal Board [1957] 2 QB 55 at 63,64. Most trial judges would consider at times and with good reason that a particular trial would progress more rapidly if they were conducting it either as counsel for one of the parties or as a judge who was entitled to follow the inquisitorial system. It is clear that a mere desire to save Court time cannot justify what was done in the present case because if it did the result would be that every trial judge would have a discretion as to the method of trial that would be followed in his or her Court and would be entitled to adopt the inquisitorial method. Clearly this is not the law. A party is entitled to a fair trial according to law and that is a trial in accordance with the adversarial system.’⁹

 The Court of Appeal proceeded to cite with approval the judgment of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 556, where he describes the importance of allowing barristers to present their clients’ cases:

‘The administration of justice in our adversarial system depends on very large measure on the faithful exercise by barristers of [an] independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge.’ See also Briscoe v Briscoe [1968] P 501.’¹⁰

 The case of Escobar dealt with a trial judge who made a ruling without counsel taking the opportunity of leading evidence which may have been relevant and important. In fact the trial judge actually invited counsel to lead the evidence and warned him that in the absence of any further evidence his application would be dismissed, to which counsel replied ‘your honour can do what you like.’ So fundamental is a party’s right to have Counsel address the Court on issues of evidence that the Court of Appeal found that it was not possible for counsel to waive it here. A retrial was ordered.

The Court in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208. affirmed the proposition that Counsel must have a right to make submissions in respect of evidence. In the words of Mason P:

 ‘How can the court know with any certainty that evidence and argument from a party would have made no difference? It simply cannot know in the sense of knowledge as justified belief. Facts, truth, insight, all emerge from argument and discourse, and the clearest case can easily give way to doubt.’¹²

In that case Ipp J referred to several cases at High Court and intermediary level where a refusal of courts to allow evidence and submissions regarding evidence would necessarily lead to a retrial.¹³In the words of the High Court in Lewis v Ogden(1984) 53 ALR 53 at 57, ‘the freedom and the responsibility which counsel has to present his client’s case are so important to the administration of justice.’¹⁴

Case Management – Brevity is the Soul of Wit

In his speech to the Bar Readers Course in Brisbane in 1999, his His Honour Justice Hayne gave firm and at times contrary views to the ones expressed above. The English decision of Ashmore v Corporation of Lloyd’s [1992] 1 WLR 446 appears to be the high-watermark of this attitude:

‘The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of 10 bad points the judge will be capable of fashioning a winner. In nearly all cases the correct procedure works perfectly well. But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination (per Lord Templeman at 453).

Lord Roskil was even more forthright at 448:

In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.

Hayne J was at pains to point out that now: The days when the courts were seen as passive tools controlled wholly by the litigants are days that are past.

There is indeed modern High Court authority to support this. As Glesson CJ said in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (at 493-494):

The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs. There are a number of Practice Notes issued in relation to the business of the Supreme Court making that perfectly clear. The flow of cases through the courts of this State is now managed by the judiciary, and not left to be determined by the parties and their lawyers.

Conclusion

Where does this leave practitioners in their relationship with the bench? In a sense there is nothing particularly controversial in the principle that lawyers should act as efficiently and expeditiously as possible and not waste the Courts time. It isn’t that different to Mason J’s dicta in Gianerelli above. In fact, it is perfectly reasonable in the context of the exceptional workload on the Courts. Perhaps Escobar and Ashmore are only different sides of the same coin. And let us face it, some lawyers make their living trying to take every trick, or bet on every long-shot.

The only problem arises when there is a disagreement as to what is a good point to argue, and what is not. Some of the most important legal principles would not have come about had somebody decided that a woman with a snail in her bottle did not need to sue in contract. And what if we are talking about a client’s liberty, or their home? And so it is not such a simple balance. And perhaps there is no simple answer, other than to trust the courts, and, in particular, the appellate courts, to honour the principles of natural justice as best they can within the constraints of an overwhelmed judicial system.

Marc Testart, Barrister

Posted in: Ethics/Professional Conduct