An aspect of the duty to the administration of justice is the duty to inform the court of legal authorities that ‘bear one way or the other upon matters under debate’.1 The court expects this ‘quite irrespective of whether or not the particular authority assists the party which is aware of it’.2 It is an obligation of confidence between the court and the advocates who appear before the court.3 The Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) have professional obligations to this end. Rule 19.6 requires that, at the appropriate time in the hearing of the case, if the court has not yet been informed of that matter, to inform the court of:
- any binding authority;
- where there is no binding authority, any authority decided by an Australian Appellate Court; and
- any applicable legislation
known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case (emphasis added).
This obligation is part of our responsibility to the rule of law so as to ensure the court will not misdirect itself and can make a properly informed decision.
The obligation continues until a final judgment is given. Rule 19.8 states that if we become aware of matters within rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, we must inform the court of that matter by:
- a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or
- requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
It should also be noted that you need not inform the court of the matters within rule 19.6 at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for you to have informed the court of such matters in the ordinary course has already arrived or passed.4
Nor are you required to inform the court of any matter otherwise within rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.5
As McHugh J has said:
[I]n many situations arising in the conduct of litigation, the common law requires an advocate to act contrary to the interests of his or her client … advocacy is probably unique in imposing common law obligations on a professional person to act contrary to the interests of a lay client.6
1 Glebe Sugar Refining Co Ltd v Greenock Habour Trustees [1921] SC (HL) 72, 74. Cited with approval by McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [112] (D’Orta).
2 Ibid.
3 Ibid.
4 ASCR r 19.7.
5 ASCR r 19.9.
6 D’Orta (n 1) [113] 41-42.