In Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau,1 the Federal Circuit and Family Court of Australia provides a timely reminder to practitioners of their duty of formality before the court.
Practitioners should be mindful of respecting the independence and integrity of the administration of justice in dealing with the court,2 where propriety, professionalism and formality must not be compromised in the advent of digital communication.
Background
Proceedings were commenced in the court’s bankruptcy jurisdiction and the court subsequently entered case management orders. Five days after the time for compliance with the orders had passed, an email was received by the court’s chambers from a law clerk of the solicitors for the second respondent that concluded with the following statement: “Please have the Directions hearing relisted in accordance with the Orders,” signed off with “Kind regards”.
Upon receipt of this email, the matter was listed for a directions hearing where the legal practitioners for the parties were required to appear to address the failure to comply with the orders made; and the basis or authority upon which the court could be directed by a law clerk to make orders and relist proceedings.
Justice Given observed that the court had been, with increasing frequency, receiving correspondence from parties in the nature and terms of the email concerned. This issue was of sufficient concern to the court to warrant the written reasons of Her Honour, that provide various reminders to practitioners of their professional duties generally.
Key takeaways
It was firstly acknowledged that orders made by the court must be complied with. Any party that may apprehend an inability to comply should approach the court in advance and provide an explanation for the foreshadowed inability to comply. Her Honour considered that in such a circumstance, an explanation is not only warranted, but essential, to explain to the court why the orders have been breached. When exercising a liberty to apply, the terms of that liberty should be observed: it is a liberty to ‘apply’ for relisting, not a liberty to submit alternate orders for automatic processing.3
Secondly, her Honour recognised that, “There is arguably nothing so informal, or possibly arrogant, as to approach a Court with orders which have been agreed amongst the parties and simply presume, or in the instant case direct, that they will be made”.4 Further, the concluding use of “Kind regards” or similar expressions in correspondence with the court were regarded as not appropriate and inconsistent with the obligation to avoid informality.
Thirdly, where a party is represented, submissions should not be made to the court by anyone other than a legal representative. An unadmitted law clerk would not, without leave be permitted to appear in Court for a party. It was accepted that conduct or submissions that are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the court.5
Finally, supervision arrangements for lawyers communicating with the Court should be stringent.6
Though the advent of email correspondence between legal practitioners and courts has enabled parties to approach chambers swiftly for case management purposes, practitioners are reminded that expedience and formality are not mutually exclusive. Her Honour considered that it would similarly be a serious mistake to confuse the ease of use provided by email as giving rise to a correlative reduction in propriety, professionalism and formality.7
For additional guidance on court etiquette and courtesy in communication, practitioners are referred to Guidance Statement No. 25 Professional Standards when Appearing in Court Remotely and Guidance Statement No. 34 Communicating with the court.
Footnotes
1 [2023] FedCFamC2G 949 (‘Amirbeaggi’).
2 Queensland Law Society, Australian Solicitors’ Conduct Rules 2012 (at 1 June 2012) r 18.
3 Amirbeaggi (n 1) [11].
4 Ibid [14].
5 Ibid [15].
6 Ibid.
7 Ibid [18].
One Response
While I understand why the judge wasn’t happy with the assumption the order would just be made, the comments that were critical of the sign off “Kind regards” are just petty. It has no different meaning than yours faithfully. Comments like that just seem out of touch.