Order application very out of order

In a recent District Court of Queensland case, the respondent had brought proceedings against the applicant seeking possession, under a registered mortgage, of a certain house and land, and judgment for sums owing under a loan agreement secured by the mortgage.

During the complex procedural litigation, the applicant made an application for subpoenas and for access to subpoenaed documents. Ultimately, the court dismissed the application.

Some two months later, the applicant viewed the court file on eCourts and noticed that the orders made by the court dismissing her application had been amended. The amendment was in the nature of a further order, which appeared to dismiss another application made by the applicant in the course of the litigation to set aside a previous order of the court for substituted service.

She made enquiries with the registry to obtain a copy of the amended order, which had not been served on her by the respondent. After speaking with the registry, the applicant was informed that the amended order was incorporated following the endorsement of the judge’s associate, at the request of the respondent’s solicitors.

It became clear, therefore, that the making of the amended order was the result of an approach to the associate and the registry by the respondent’s solicitors without notice to the applicant.1

It was clear on the evidence before the court that the applicant’s consent to this communication was not sought from the respondent’s solicitors. Further, at the time this application was heard, the respondent’s solicitors had not yet informed the applicant of the communication or its content.2

Consequently, the applicant applied to set aside the amended order.

Issues

In Heritage Bank Limited v Gleeson (No.4) [2020] QDC 224, two issues were considered by the court:

  1. Whether the amended order should be set aside?
  2. Whether, by communicating with the court in absence of the applicant’s consent, the respondent’s solicitors were in breach of the Australian Solicitors Conduct Rules 2012(Qld) (ASCR)?

Issues considered

Setting aside amended order:

With respect to the first issue, the court briefly considered whether the amended order could be set aside under r667(2)(d) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Rule 667(2)(d) UCPR provides that “[t]he court may set aside an order at any time if … the order does not reflect the court’s intention at the time the order was made”. The court observed that at the time the original orders were made, the application to set aside the order for substituted service was not before the court, nor was any application made to dismiss it by the respondent. The only issue before the court was the application for subpoenas and for access to subpoenaed documents.

The court’s orders, as originally recorded on the order sheet, were consistent with that procedural context. It was impossible, therefore, to conclude that the court intended to dismiss the application to set aside the order for substituted service.3

The court noted that the later amendment of the indorsement on the file appeared to have been undertaken by the court after representations by the respondent’s solicitors, which were themselves misconceived.

It was concluded, therefore, that the court’s instruction to amend the endorsements was made in error. Accordingly, the court found that the amended order did not reflect the intentions of the court, and the amended order should thus be set aside.4 The court also found that the amended order should ‘clearly’ be set aside under r667(2)(a) UCPR, as the respondent’s solicitors’ approach to the associate resulted in the court issuing the amended order in absence of the applicant.5

Compliance with the ASCR:

With respect to the second issue, the court considered whether the respondent’s solicitors’ conduct constituted a breach of rr22.5 and 22.6 ASCR. Rules 22.5 and 22.6 ASCR relevantly provide:

22.5      A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2  the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6      A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

The court commenced by considering the respondent’s solicitors’ communication with the judge’s associate. It observed that a solicitor for the respondent communicated with the court through the associate by telephone, and consent was not sought from the applicant before that communication occurred, nor at any time thereafter.

Further, even at the end of the hearing before the court for this application, the precise terms of the communication remained undisclosed.6 The court contemplated, however, two possible contentions in response to the respondent’s solicitors’ conduct.

First, it examined whether it might be contended that communication about the content of an order of the court does not concern a matter of substance. On this point, the court held that the making of orders is the ultimate outcome of the exercise of judicial power, and the content of those orders is a matter of substance. It is difficult to conceive of any matter of more substance in inter partes litigation than whether or not an order was made dismissing a proceeding, especially where the sealed order first issued by the court does not contain any such order.7 In the context of this matter, such a contention was therefore wrong.

Second, the court examined whether it might be contended that the communication was not in connection with current proceedings because the court had dismissed the application to set aside the order for substituted service. On this point, the court observed that, at the time communication with the associate was made, there was no order of the court dismissing the application to set aside the order for substituted service. Accordingly, the court held that that application was a current proceeding, and the contention, therefore, was wrong.8

The court then considered the respondent’s solicitors’ communication with the registry. Briefly, the court concluded the following:9

  1. The communication involved a matter of substance in connection with current proceedings, in that it contained a submission as to why the court ought not to proceed with the application to set aside the order for substituted service.
  2. The communication was not replying to an invitation by the court for communication.
  3. Consent to the communication was not obtained in advance from the applicant. Although the email to the registry was copied to the applicant, it is clear that merely copying the other side into a communication is not sufficient to obtain consent for the purposes of the rule.10

Ultimately, upon its consideration, the court concluded that the respondent’s solicitors were in breach of rr22.5 and 22.6 ASCR.11 It observed that the respondent’s solicitors’ conduct was the kind of conduct apt to produce exactly the result which rr22.5 and 22.6 ASCR are designed to avoid; that is, unfair advantage taken by private communications with the court leading to an apparent lack of impartiality in the conduct of proceedings. This is even more so in circumstances where the other party is a self-represented litigant, as the applicant was in this case.12

The court also noted that, when the respondent’s solicitors communicated with the registry, they did so “in a high-handed manner, putting rhetorical questions and purporting to direct the Court as to how to conduct the matter”.13 In the court’s view, this communication fell well below the standard of courtesy which the court is entitled to expect from a legal practitioner.14

The court opined that, had the respondent’s solicitors done the courtesy of informing the applicant of their intention to request the amended order, the whole situation may have been avoided.15

Ultimately, the respondent’s solicitors’ conduct had caused considerable inconvenience to the applicant and consumed a considerable amount of court time. The respondent’s solicitors’ had a paramount duty to the court,16 and that duty included, in the court’s view, assisting the court to discharge its duty to ensure that proceedings involving a self-represented litigant were conducted fairly.

The court found that the conduct in this matter fell short of what the court is entitled to expect from a practitioner in that regard.17 Accordingly, an order was made that the transcript of proceedings and the court’s reasons be referred to the relevant disciplinary body for consideration.18

Liam O’Shaughnessy is a Queensland Law Society Ethics Clerk. This article was prepared under the supervision of Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
1 Heritage Bank Limited v Gleeson (No.4) [2020] QDC 224, [27].
2 Ibid [35].
3 Ibid [38].
4 Ibid [39].
5 Ibid [40].
6 Ibid [42].
7 Ibid [44].
8 Ibid [45].
9 Ibid [47].
10 See Legal Services Commissioner v Trost [2019] QCAT 357, [55]-[58].
11 Heritage Bank Limited v Gleeson (No.4) [2020] QDC 224, [47].
12 Ibid [49].
13 Ibid [48].
14 See Australian Solicitors Conduct Rules 2012(Qld) rr3, 4.2.
15 Heritage Bank Limited v Gleeson (No.4) [2020] QDC 224, [46].
16 Australian Solicitors Conduct Rules 2012(Qld) r3.
17 Heritage Bank Limited v Gleeson (No.4) [2020] QDC 224, [50].
18 Ibid [51].

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