FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELKIN & WEARNE (No.2) | [2015] FCCA 1881 |
| Catchwords: FAMILY LAW – Duty of lawyers to inform the Court fully and in a timely manner (absent cases of urgency) of all aspects of any Application – the duty can be breached (and therefore will likely mislead the Court) if only part of the orders sought in the Application are notified to the Court – full disclosure of orders sought also affects the resources needed (e.g. the allocation of time, and place where heard) – care needed before making any findings of negligence – application for recusal – duty of solicitors to Court including in the filing of accurate affidavits and other documents – conflict between sworn affidavit and documents lodged with Full Court with both prepared by the same lawyers. |
| Legislation: Family Law Act 1975 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Law Council of Australia: Model Rules of Professional Conduct and Practice, (2002) Best practice guidelines for lawyers doing family law work, the Family Law Council and the Family Law Section of the Law Council of Australia (Second Edition: 2010) G. Dal Pont, Lawyers Professional Responsibility (Fifth Edition) (Sydney: Lawbook Co, Thomson Reuters, 2012) | ||
| Applicant: | MR ELKIN | |
| Respondent: | MS WEARNE |
| File Number: | AYC 11 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 2 July 2015 |
| Date of Last Submission: | 2 July 2015 |
| Delivered at: | Wagga Wagga |
| Delivered on: | 2 July 2015 (oral reasons) 22 July 2015 (written reasons) |
REPRESENTATION
| Solicitors for the Applicant: | Commins Hendriks, Wagga Wagga |
| Counsel for the Respondent: | Mr P Batey |
| Solicitors for the Respondent: | Farrar Gesini Dunn, Canberra |
ORDERS
The matter be transferred to the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Elkin & Wearne (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WAGGA WAGGA |
AYC 11 of 2012
| MR ELKIN |
Applicant
And
| MS WEARNE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons, which were delivered orally in Wagga Wagga on 2nd July 2015, have been revised from the transcript. They should be read in conjunction with separate reasons regarding a costs order made…
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- AGLC
- Elkin and Wearne (No.2) [2015] FCCA 1881
- Case
- [2015] FCCA 1881
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the extent of a legal practitioner's duty to the court, particularly concerning the presentation of evidence and the avoidance of misleading statements. The court considered the overriding duty owed by legal representatives to the administration of justice, which includes a duty to the court that supersedes their duty to their client. This duty encompasses not misleading the court, producing relevant authorities and documents, and ensuring that affidavits and pleadings do not contain false information.
Judge Neville applied established principles of professional responsibility, referencing the comments of Lord Reid in *Rondel v Worsley* and subsequent case law and professional rules. The court emphasised that lawyers must fearlessly advance their client's case but must not deceive the court or cause improper delay or expense. The judgment highlighted that knowingly making false allegations in pleadings or presenting inadequate affidavits constitutes professional misconduct. The court also referred to rules requiring practitioners to correct any misleading statements made to the court as soon as they become aware of them.
The court ordered that the matter be transferred to the Family Court of Australia.
Orders
Orders of the court
1.
The matter be transferred to the Family Court of Australia.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Finally, the often referred to comments by Lord Reid in Rondel v Worsley bear repeating (emphasis added):[8]Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But as an officer of the court concerned in the administration of justice, he has an overriding duty to the court…. Counsel must not mislead the court ... he must not withhold authorities or documents which may well tell against his client but which the law or the standards of his profession require him to produce.[8] Rondel v Worsley [1969] 1 AC 191 at p.227. His Lordship’s comments and those to which I have earlier referred, in my view, apply equally to all lawyers (whatever their formal designation) who appear before the Court. As observed in standard texts on professional responsibility, the following further principles should be noted.[9][9] Generally, see G. Dal Pont, Lawyers Professional Responsibility (Fifth Edition) (Sydney: Lawbook Co, Thomson Reuters, 2012). The proper administration of justice requires that courts (and tribunals) be able to rely on what a lawyer says and does.[10][10] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at p.445 (Mahoney JA). The House of Lords has held a solicitor to be guilty of professional misconduct for “preparing and putting on the file affidavits of documents which he knew to be very inadequate.”[11][11] Myers v Elman [1940] AC 282 at pp.300-301 (Viscount Maugham). Lord Russell agreed (at p.307) with Viscount Maugham on this point. In the same case, Lord Atkin said (at p.302: emphasis added): “If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible ….” To allow a client to swear an affidavit knowing it contained false information has been held to be professional misconduct. So too is knowingly making false allegations of fact in a pleading.[12][12] Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at p.60 (Ipp J, sitting as a member of the Court of Appeal of the Supreme Court of Western Australia). See also the comments of Parker J in the same case, at WAR pp.72-73, Ipp and Steytler JJ agreeing. Although his Honour’s comments are directed primarily to the action of Counsel, in my view, they apply equally to all advocates. In large measure these Rules which were issued in March 2002, codify and summarise the principles outlined already from the general law. The part of these Rules most immediately relevant is Part 14, entitled “Frankness in court.” Rule 14.1 states that a “practitioner must not knowingly make a misleading statement to a court.” Rule 14.2 states: “A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading.”