Speeches
Murdoch Law School
The duty of parties and their lawyers to co-operate and act in good faith in civil proceedings
The Hon Justice Michael Barker
13 October 2009
This seminar has been organised to celebrate and reflect upon the 10th anniversary of the Western Australian Law Reform Commission's
Final Report on the Review of the Criminal and Civil Justice System in Western Australia (Project 92, September 1999). It is hard
to believe 10 years have passed so quickly! I was at the Bar at the time the Commission embarked upon its project that led to
the report and helped to co-ordinate the Bar's formal response to the Commission's request for submissions. The Bar's response,
overall, was cautious, if not conservative. The Bar highlighted the values of the existing systems, especially the civil justice
system, at the time, although supportive of change in many areas.
Needless to say, the Bar's cautious approach was quickly cast aside by the Commission! In a comprehensive report the Commission
made far-reaching recommendations to: improve the efficiency of the justice system overall; introduce a new administrative justice
system; and generally to widen access to justice for the people of Western Australia. A quick glance through the 447 recommendations
in the report confirms the scope of the report and the audacity of its vision. No court or procedure was left untouched, and,
as if to emphasise the expressed concern of the Commission that urgent action was required to radically improve the system of civil
justice, the last three recommendations proposed that the State engage in a trial of private courts. There's nothing like competition
to get things moving!
Since the Final Report came down much has been done to bring about the recommended reforms, not the least being the appointment
of the then Chair of the Commission, Mr Wayne Martin QC, as Chief Justice of Western Australia. The Government has also played its
part over the past few years with the former Attorney‑General, through his department, auditing the extent to which the report
had been implemented. Possibly no other WALRC report has received such consideration from government. And the score card is pretty
impressive.
One landmark recommendation, that I became particularly well acquainted with, was that relating to the system of administrative
justice - for the establishment of a state civil and administrative review tribunal. That recommendation was taken up by the Gallop
Labor government, and championed by its Attorney‑General, Jim McGinty MLA, upon its election in 2001. When the State Administrative Tribunal Act 2004 (WA) (SAT Act) passed the State Parliament in late 2004, I had the privilege of being appointed the inaugural President of the
new super-tribunal. I am able to say that the Tribunal's standard operating procedures from day one, 1 January 2005, were much
influenced by the recommendations in the WALRC's report. The fact that the Commission had made the recommendations it did strengthened
my hand as the new President of the SAT in introducing new and novel ways of doing legal business in a tribunal.
I shared then, as I do now, the view of the Commission that much run of the mill litigation gets bogged down in barren pleading
arguments and pre-trial skirmishes, suffers from poor case management and would profit from a much greater emphasis on mediation
and other forms of alternative or assisted dispute resolution (ADR). I had seen what the Federal Court of Australia's judge-managed
docket system could achieve in this regard and knew that the Tribunal offered a wonderful chance to prove the Commission right!
From the start, in the SAT, pleadings have played no part in stating a case; rather statements of issues, facts and contentions
are often used for this purpose – something the Commission recommended as an alternative to formal pleadings. Discovery
is almost unheard of in the SAT, with parties filing those documents they particularly wish to rely upon at a hearing; if others
are required they can be ordered. (However, in administrative review hearings the Tribunal is aided by the rule that decision
makers must file all the documents they hold in relation to the decision under review.) Interrogatories are obsolescent. Mediation
is pursued at an early stage of proceedings and is an almost mandatory part of the SAT procedure. And the whole system is case
managed by SAT members. As successive SAT annual reports to Parliament have indicated and the recently concluded Parliamentary
review has found, the SAT has been a great success, due in no small part to the adoption of these processes designed to achieve
good, speedy and cheap outcomes: see Standing Committee on Legislation, Parliament of Western Australia, Inquiry into the Jurisdiction and Operation of the State Administrative Tribunal (2009).
There is, however, another ingredient that is fundamental to the success of any of the system reforms suggested by the Commission
in its report, which has been evident in the SAT success, and that is the recognition by parties and their lawyers, and their adherence
to, the duty to cooperate and act in good faith in civil proceedings. Unless all participants in the system cooperate and act
in good faith, the system of civil justice will fail to meet community expectations, despite the best efforts of courts and tribunals
to drive the system to meet those expectations.
The Commission also recognised this in their report. Chapter 36 for example explicitly focussed on the legal profession and its
duties, both to the court and to clients, and identified a number of perceived failings of the profession that it ascribed to an
increasing commercialisation of legal work. At [36.13] the Commissioners acknowledged there are 'general obligations not to waste
court time and resources' but observed there is little attention paid to the meaning of these obligations in the case of well resourced
parties. The report then asked the question:
Should all lawyers, including criminal defence lawyers, be required to see themselves primarily as agents of the justice system?
In my view, the duty to which I refer is much more explicit than the general obligations to which the Commission referred, and is
likely to be emphasised increasingly as courts and tribunals refine the means by which we try cases so that we achieve justice in
a timely manner and at a reasonable cost to the parties and the community who financially support the system of justice.
It is nowadays commonplace for courts, tribunals and other bodies within the broader system of administration of justice, to pursue
the objectives of what might simply be termed good, speedy and inexpensive justice. Many modern statutes governing the operation
of courts and tribunals explicitly state the objectives in such terms. The SAT Act 2004, s 9; the Rules of the Supreme Court 1971 (WA), Order 1 rules 4A and 4B; and the Civil Procedure Act 2005 (NSW), Part 6 Division 1, provide good examples of this development.
So too does the Federal Court's Notice to Practitioners and Litigants concerning Case Management and the Individual Docket System,
issued 5 May 2008 by Chief Justice Black, which states that the "overarching purposes" of the individual docket system
used by the Federal Court is the resolution of disputes as "quickly, inexpensively and efficiently as possible". The
Notice then adds, in [3.3], that:
The parties and their representatives have an obligation to cooperate with, and assist, the Court in fulfilling the overarching
purposes and, in particular, in identifying the real issues in dispute as early as possible and dealing with those issues in the
most efficient way possible.
It is anticipated that the Federal Court of Australia Act 1976 (Cth) will shortly be amended by the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 to express this overarching purpose in the Court’s Act.
These objectives will undoubtedly remain highly relevant for some time to come. That this is so is emphasised by what the High
Court said recently about case management in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (5 August 2009). For example, the plurality in their joint judgment at [113], by reference to the power of a court to permit
a party to amend the terms of its claim at a late stage of proceedings, observed:
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those
times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy
(footnote omitted). It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the
parties to the proceedings.
The plurality at [114] then went on to note that the rules of the Australian Capital Territory Supreme Court in question in that
case, recognised the purposes of case management by the courts, and remarked that delay and costs are undesirable. In particular,
their Honours observed that delay has deleterious effects, not only upon the parties to the proceeding in question, but also to
other litigants. Their Honours emphasised the objectives of the rules in question as to the timely disposal of cases and the limitation
of costs. Their Honours importantly added at [114]:
It was significant that the effect of its [the ANU's] delay in applying [to amend its claim] would be that a trial was lost and
litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases.
To similar effect, Chief Justice French, at [24], noted by reference to the rules of the court in question that the discretion to
permit an amendment to a pleading is exercised in the context of the common law adversarial system "as qualified by changing
practice". The Chief Justice added, at [24]:
But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law.
To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another
factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency
occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance
with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its
conduct of the litigation.
In my view, it is now well‑understood that the objectives of good decision‑making achieved expeditiously and as inexpensively
as possible will only be realised if all those involved in the administration of justice share the responsibility to achieve them.
As the judgments in Aon demonstrate, and the WALRC's report ten years ago emphasised, in the past nobody in the system of administration of justice took
particular responsibility for achieving these objectives. However, commencing about 20 years ago, courts began taking a much
stronger hand in the conduct of litigation, both criminal and civil, often over the protestations of the lawyers involved, if not
their clients.
In doing so, the courts built on the well recognised principle, often utilised for disciplinary purposes, that legal practitioners
are "officers of the court". In Western Australia the responsibilities of legal practitioners derive from admission
to the Supreme Court of WA under the provisions of the Legal Profession Act 2008 (WA), which also regulate the subsequent conduct of a practitioner, although not removing the Court's inherent controls over them.
That is not to say, however, that a statutory superior court, such as the Federal Court, which does not have an "inherent jurisdiction”,
is powerless to deal with the conduct of a legal practitioner involved in proceedings before the Court that is considered worthy
of censure. This is perhaps most vividly emphasised in the decision of French J (as his Honour then was) in Ex Christmas Islanders Association Inc v The Attorney General for the Commonwealth (No 2) (2006) 233 ALR 97; [2006] FCA 671. His Honour ordered a legal practitioner who was both solicitor and counsel for the unsuccessful applicant, to pay the respondent's
costs of the proceedings and on the submissions giving rise to the costs order.
French J emphasised at [30] that a legal practitioner's responsibilities extend to cover the performance of the legal practitioner
in all professional settings:
A solicitor or counsel may conceive of himself or herself as advancing the public interest or some moral cause in pursuing particular
proceedings. Whether acting in the public interest or to advance a moral purpose, whether charging the highest fees or acting
pro bono, and whether counsel or solicitor, legal practitioners have a duty to the client and to the Court to be competent in their
conduct of legal business.
The particular findings made by French J emphasised, at [31], that the practitioner was so incompetent in the conduct of the application
before the Court as to be seriously in breach of his duty to his clients and the Court. His Honour found he failed to give proper
consideration to the essential elements of the judicial review application which he presented.
French J found that while the Federal Court has not "inherent jurisdiction" and its jurisdiction and powers are statutory,
it has implied powers. However, his Honour did not find it necessary to resort to any implied power in this particular case to
award costs against the legal practitioner by reason of the Court's power to award costs against non‑parties, including practitioners,
to be found in s 43 of the Federal Court of Australia Act 1976 (Cth) and O 62, r 9 of the Federal Court Rules.
The responsibilities of a legal practitioner to be competent and to make the system of the administration of justice work effectively,
that I am referring to, are not new, although their emphasis is recent. Justice David Ipp in his well read article, "Lawyers'
Duties to the Court" (1998) 114 Law Quarterly Review 63, at 65, concluded it could be said that, as of 1998, there was a "general duty to conduct cases efficiently and expeditiously".
Justice Ipp identified and discussed the well‑known duties of a lawyer concerning disclosure to the court, not to abuse the
court process and not to corrupt the administration of justice, to which duties the Commission also referred in Ch 36 of its Final
Report. However, he was also at pains to highlight the duty to conduct cases efficiently and expeditiously. In relation to this
duty, Justice Ipp particularly isolated the duties to take due care and skill and to conduct cases expeditiously. He also noted
specific case management duties. In doing so, his Honour acknowledged what might seem to be a competing duty, the duty to take
all points for one's client and the duty to exercise an independent judgment. As to the apparent competition of these principles,
Justice Ipp observed, at 100:
This does not mean that counsel must determine which points are likely to succeed and refrain from presenting or arguing any others
(although that might be excellent advocacy); on the other hand, it does mean that counsel must determine which points are reasonably
arguable, and must jettison the rest. This approach is not radically different to what has been said in past times, it merely requires
counsel not to waste public resources on points that are in his judgment bound to fail.
Justice Ipp summed up his views concerning the general duty to conduct cases efficiently and expeditiously by observing, at 106:
This general duty requires counsel to present the issues as clearly and economically as possible and, in appropriate circumstances,
to co-operate so as to avoid needless disputes. Breaches will result when lawyers waste time, and are guilty of prolixity and
repetition, and when the use of aggressive and discourteous tactics lead to the incurring of delay, inconvenience and needless
cost. Lawyers who fail to adhere to rules and practices laid down to speed up litigation may thereby breach their duty to the
court.
As noted, this article was published in 1998. At that time Justice Ipp was at the forefront of ushering in a range of case management
reforms and refined trial techniques in Western Australia. His endeavours were largely successful. They are still with us
today. Importantly, in my view, they are underpinned by the duty of parties and their lawyers to cooperate and act with good faith
in conducting the litigation before the court.
Rule 14 of the Professional Conduct Rules of the Law Society of Western Australia by reference to the "duty to the court"
specify obligations that reflect those identified by Justice Ipp including that counsel must:
- not intentionally deceive or mislead the court.
- act with due courtesy.
- use best endeavours to avoid unnecessary expense and waste of the court's time.
- inform the court of the probable length of the case, when requested.
- inform the court of the possibility of settlement if possible without revealing the existence or the content of “without prejudice”
communications.
- inform the court of any development which affects the information already before the court.
The Western Australian Bar Association Rules 2006 also deal with the "duty to the court". They are similar in many ways
to those of the Law Society just stated and note that barristers:
- have a duty to ensure that the court is not misled.
- have an express "Duty to opponents". For example, they must not knowingly make a false statement to their opponent.
- have a duty to their client, to advance and protect the client’s interests and to assist them to understand the issues in
the case.
- must inform the client or the instructing solicitor about the alternatives to fully contested adjudication. They must not act as
a mere “mouthpiece” for the client or the instructing solicitor and must give their truthful opinion on any matter
submitted to them for advice.
In my view, modern case management techniques, which are now backed with the authority of the High Court as a result of the Aon decision, and which were promoted in the Commission's final Report ten years ago, are likely to pick up apace in the immediate
future. I say this because all superior courts in Australia are now moving to provide for expedited or "fast track" proceedings.
Just as the introduction of refinements into luxury model motor vehicles soon enough find their way into base models, I suspect
that the availability and success of fast track procedures will bring pressure to make them the norm rather than the exception.
Only if the resources provided by governments and parliaments to the justice systems are insufficient, will there be good reason
for not adopting such refinements across the board. As I say, I feel certain the pressure will be there for courts and tribunals
around the country to adopt these new fast track procedures as the norm.
However, their adoption plainly requires lawyers and their clients to operate under strict duties to cooperate with each other and
the court and to act in good faith all round to achieve the fast track objectives. Part of meeting this duty will be the requirement
that experienced lawyers for the opposing parties agree to the sensible resolution of issues without the constant intervention
of the court. This requires lawyers to be competent, but also to understand the significance of the duty they owe the court, and
the broader community, to advance matters to trial on the real issues, plainly stated, with the relevant, not marginally relevant
documents filed in support of the case. It means argumentative applications about pleadings, that can be worked out at trial should
not be brought to obfuscate and delay the determination of the real issues between the parties. It requires a changing culture
to the proper conduct of litigation.
In this regard, one of the latest fast track models is that of the Federal Court of Australia issued by Chief Justice Black of the
Federal Court on 24 April 2009 and discussed by his Honour in a paper dated 18 June 2009 entitled "The Role of the Judge in
Attacking Endemic Delays – some lessons from Fast Track", which may be found on the Federal Court’s website. The
fast track directions seek to identify the main issues in dispute in a case, streamline the production of documents that need to
be produced to enable the matter to go to an early trial and emphasise the importance of the parties cooperating and acting in
good faith in order to achieve these objectives. Indeed, Pt 5 of the practice note states this duty in the following terms:
Parties to cooperate and act in good faith
Parties to cooperate
5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding
is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible
and are dealt with in the most efficient way possible.
Resolution of disputes
5.2 Before making any application relating to an interlocutory dispute (including disputes in relation to discovery),
the parties must meet and confer and attempt to resolve the dispute in good faith. If the parties are unable to resolve the dispute,
any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’
requirement was completed, though unsuccessful. Failure to so certify will result in the application being immediately refused.
In my experience, highly professional and competent lawyers, solicitors and barristers, already appreciate the professional responsibilities
I have referred to and the fact that the interests of their client, the objectives of the court and the community generally, are
met by actively endeavouring to realise the duty to cooperate and act in good faith in all proceedings. Fortunately, the best traditions
of the bar emphasise these duties and actively seek to meet them.
Increasingly, in my view, courts will be prepared to take appropriate steps to ensure that civil and criminal litigation does not
go off the tracks through untimely adjournments, through late amendments to pleadings, through late changes to the nature of the
case being presented and through applications designed to delay the proceeding for insufficient reasons, and will impose costs
orders, including against non‑parties, such as solicitors, who can be seen to be recalcitrant when it comes to compliance
with these professional obligations.
It may be said then that there is and will continue to be something of a "carrot and stick" approach to the realisation
of the duty of the parties and lawyers to cooperate and act in good faith in the conduct of proceedings in courts. I suspect that
will always be the case. What is important however is that highly professional and competent legal practitioners accept and actively
seek to realise the duty they and their clients bear to cooperate and act in good faith so that this becomes the prevailing culture
within the system of administration of justice. From what I have observed as a judge over the past 7 years I am confident this
culture is a fast-developing one in Western Australia.
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