Decision shows importance of formality

In Jennings & Barrese,¹ the court ordered the practitioner to be referred to the Legal Profession Conduct Commissioner as a consequence of her failure to attend three court hearings while acting for a respondent mother in pending parenting proceedings in the Federal Circuit and Family Court of Australia.

The practitioner’s conduct was held to appear to have breached rr 3, 4, 5, 13 and 18 of the South Australian Legal Practitioners Conduct Rules which are identical to the Australian Solicitors’ Conduct Rules 2023 (Qld).

The practitioner’s first two non-appearances occurred in circumstances where the court considered that she ought to have appeared or instructed counsel to attend on her behalf for the mother. Further, the third non-appearance occurred when the practitioner was personally ordered to attend court to show cause and deal with her recalcitrant conduct in the proceedings.²

The court also made several comments regarding the practitioner’s conduct in sending a communication to chambers and copying in the other parties at 10pm the night before the first hearing. In the correspondence, the practitioner noted that she would not be able to attend the hearing the next day because her father had been very ill, apologised for her incapacity and inconvenience, appreciated their understanding and signed off with ‘Kind regards’.

First, the court described this practice as entirely inappropriate; particularly as r 2.41 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that any documents “served electronically” are not taken to have been served until “the next business day after the document was sent”.³ Accordingly, the email would have not been served until the opening of the court on the next day, being the day of the hearing.

At [28], the court acknowledged that, ‘the custom of sending emails and electronically filing and serving documents at all hours of the early morning and/or night is one that ought be reconsidered by the profession more broadly; but particularly in this jurisdiction where it seems to have become a habit. This is because the legal profession, and importantly the Court, other than in circumstances of genuine urgency is not a 24/7 service industry.’

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Second, the court noted that there should have been no assumption on the part of the practitioner, whatsoever, that arising from the communication there would have either been an exemption from the requirement that she would be excused from attending the hearing; or that a further adjournment of the hearing would be administratively granted.⁴ However, implicit to the practitioner’s communication and her failure to appear or instruct counsel to appear was an assumption that that court would accede to her request to be excused and/or an adjournment granted.⁵

Third and of equal concern to the court was the fact that the communication revealed a distinct and inappropriate level of informality with the court.⁶ The court endorsed the discussion in Amirgeaggi:

• Correspondence to Chambers which will necessarily be read by the Judge is a communication before the Court. As such, an email sent to Chambers becomes a communication with the Court itself.

• 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 (or to use the parlance of days’ past “rubber-stamped”. … The concluding use of “Kind regards” (see [3] above) or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.

• The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since the COVID-19 pandemic restrictions which forced a number of Courts to conduct hearings using online technologies. That same circumstance has deprived a generation of young lawyers from exposure to proper Court etiquette. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.

• Similarly, it would 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.

• The advent of the use of email between legal practitioners and Courts was, inter alia, to enable parties to approach Chambers swiftly for case management purposes. Expedience and formality are not mutually exclusive.⁷

The court acknowledged that there could have been no misapprehension by the practitioner that her request to be excused from attending the hearing nor her request for an adjournment had been granted.⁸ For these reasons, the court made an order directing the practitioner to the Legal Profession Conduct Commissioner with a copy of the reasons for the judgement. The court noted that the applicant husband had also made an oral application for costs thrown away personally against the practitioner regarding the events discussed in the judgement, which had been listed for a separate hearing.

Footnotes
¹ [2025] FedCFamC1F 257.
² Ibid [21].
³ Ibid [27].
⁴ Ibid [30].
⁵ Ibid [31].
⁶ Ibid [35].
⁷ Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949, [13]-[18]. A summary of this decision can be found here.
⁸ Ibid [42].