Madsen v Darmali (No 3)

Madsen v Darmali (No 3) involved a dispute between the plaintiff and the defendant concerning leave to serve submissions after a hearing in the Federal Court of Australia. The defendant served submissions that went beyond the scope of the leave granted by the court. The court was tasked with deciding whether the defendant's actions constituted a breach of professional conduct and whether the plaintiff had been denied procedural fairness.

The court held that serving submissions without leave is a professional conduct issue and that such conduct is unsuitable to be remedied by consent. The court further reasoned that the defendant's actions did not provide the plaintiff with a reasonable opportunity to respond, which is essential for procedural fairness. The court found that it was not obliged to hear every submission counsel wished to make in full, and it could cut short one party's submissions to ensure the other party also had a reasonable opportunity to be heard.

The court disregarded the unauthorised submissions and made a cost order that excluded the costs of the unauthorised submissions. Although the plaintiff later consented to pay these costs "to avoid a fight," the court found that this did not alter the fact that the defendant's conduct was unprofessional. The court also noted that access to a transcript of the proceedings would not have answered the fundamental issue of the defendant's failure to adhere to the court's leave.

The court ultimately found that the defendant's actions constituted a breach of professional conduct and a denial of procedural fairness. The court made an order that the defendant pay the plaintiff's costs of the proceedings up to the date of the order. The court did not allow the consent to pay costs to override the need for professional conduct and procedural fairness in legal proceedings.