Opposing Counsel communication with Chambers
After the hearing I was cc’d on her email to chambers
In the above matter today I referred to the matter of Justice D in B & S  FamCA xxx. I must apologise as I inadvertently referred to page numbers as opposed to paragraph numbers.
I confirm that the correct paragraph numbers are paragraphs 105 to 107.
Please do not hesitate to contact me if you have any queries.
I strongly object to this communication.
Firstly, they did not file any response. I was not given notice of her intention to submit the adverse Judgment, so I did not get opportunity to respond to it, namely, that the trial judge resiled from it in open court in a subsequent hearing.
Second, if she stuffed up in the oral submission she should not have opportunity to correct this.
The judgement was highly defensive of the mother. It is 8 years old. It should not be pushed into the face of every new presiding officer, which is what is happening. In fact, I believe the “correction” submitted to chambers was specifically designed to make the new judge read the old judgement.
This is not the first time this barrister had used ex parte means to put further material, including the adverse judgement, before a judge.
Part of my application was to force her to disclose a hitherto unknown “complaint” she claimed to have made against me. I know there was no justification for it and there is an ulterior purpose. She failed to present any evidence of the complaint. The new judge forced her to disclose the “complaint” had been made to an associate - of the judge whom was hearing the case.
The barrister had been the judge’s associate for 5 years until 2015. I strongly suspect the alleged “complaint” was made as a pretext to put further information, namely, the judgement and/or mother’s secret recordings, into the judge’s chambers.
One knows when the hearing goes well. I thought I won it. However, the judgement was postponed the day it was to be delivered, and then 3 days later, basically rejudged the old judgement which had not even mentioned in the hearing.
What can one do about this?
What if you made a simple error, would you not want that corrected? Even if this was not sent the judge would have picked it up and corrected it at some point.
They copied you in on the email so it's hardly conspiracy city Arizona is it?
Last edit: by The Wolf
I expect there is another Court date?
If so, I would have to agree with you that such communications by the barrister for the other party with the Associate in this instance hardy comes close to anything urgent, immediate and/or exceptional and could have easily been something raised/corrected at the next Court date.
Let me put it this way, If every SRL that accidentally said the wrong thing in Court or mis referenced a paragraph wrote to the Associate to correct their error then the Judge would be very busy indeed!
I would personally raise this (politely) at the next hearing so it's on record. For future use if need be.
In the meantime, given as I understand it you are not seeing your child and there are clearly things about the 2008 Judgement that can give the Court reason to question your character (perhaps?) I would be trying to prove to the Court why this 'old judgement' is in no way a reflection on who you are now or as a FATHER and why contact needs to be reinstated expediently!
I am inclined to agree but it goes further it offends the requirements of natural justice: it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and raises the potential for "judge shopping", whereby an unscrupulous practitioner might eliminate a potential judge by tainting them with ex parte communications.
SWAMBO saidIf every SRL or [Barrister]that accidentally said the wrong thing in Court or mis referenced a paragraph wrote to the Associate to correct their error then the Judge would be very busy indeed!"
good advice. Although in the circumstances of this case torts and writs are likely necessary to discourage the misconduct which I believe has occurred.
SWAMBO said"I would personally raise this (politely) at the next hearing so it's on record. For future use if need be."
This is my complaint. I had no opportunity to inform the judge that the 2008 judgement had been resiled from by the trial judge. That old judgement was written to justify not accepting the equal shared care recommendations of 3 family reports using the fraudulent McIntosh "research". It was so defensive it did not even justify the orders made, namely, 9/5 & half holidays.
SWAMBO said"there are clearly things about the 2008 Judgement that can give the Court reason to question your character (perhaps?) I would be trying to prove to the Court why this 'old judgement' is in no way a reflection on who you are now or as a FATHER and why contact needs to be reinstated expediently!
Now it is effectively being reinterpreted. When contact was suspended the judge seemed simply to substitute his own conclusion of what the orders should have been. There was no evidence available or presented for any findings of attachment or the mother's greater capacity to meet the child's emotional needs, etc… and in particular in an interim hearing. Yet these were used as justification. He then ordered the mother to undergo psychiatric assessment. It simply did not add up.
During the hearing judge asked for a copy of the family report identifying the mother's significant mental health problems. The mother's barrister objected claiming that finding was not made. Judge overruled stating it is undeniable the mother has a mental illness.
After the hearing the mother's barrister fabricated a complaint against me to get access to the judge's new associate. Between the hearing ending and judgement delivered the 2008 Reasons, not mentioned by anyone in the hearing, and which effectively ignored the expert opinion to blame me for the mother's mental health issues, became the dominating piece of evidence. If it was to be used I should have had opportunity to respond to it.
And it continues. I had no notice of it being relied on at this hearing. The mother's barrister did not name the judgement in open court. She presented the pseudonym case name to chambers. In my view, there was far more to it than correcting paragraph numbers. The judgement did not have 150 pages.
Rules 53, 54 and 55 of the Barristers' Conduct Rules 2011
3. Aside from improper communications with the Court risking the derailment of pending litigation because of the perceived bias of the Judge, or the contempt of the individual practitioner of the relevant Court, or the professional misconduct of the barrister concerned, entering into communications with the Court improperly is contrary to the professional obligations owed between members of the Bar. It may also render the improperly communicating legal adviser liable to a personal costs order.
4. Rules 53, 54 and 55 of the Rules state:
"53. A barrister 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:
(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or
(b) the OPPONENT HAS CONSENTED BEFOREHAND to the barrister dealing with the court in a specific manner notified by the barrister.
54. A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in Rule 53.
55. A barrister must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 53(b), other than the matters specifically notified by the barrister to the opponent when seeking the consent of the opponent."
These rules are not new. These are not rules of best practice. They are mandatory. They reflect what Gibbs CJ described in Re JRL; Ex parte CJL as the "fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other."
In the High Court Gibbs CJ endorsed the observations of McInerney J in R v Magistrates' Court at Lilydale; Ex parte Ciccone, wherein his Honour stated:
"The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party…, written communications should normally be confined to matters concerning practice or procedure and not include information or allegations which are material to the substantive issues in the litigation
The President of the Bar Association, in his circular to members dated 18 July 2012'
1. It is the practice always to address correspondence to the Associate, and never directly to the Judge. The usual form of correspondence to the Associate is to request the Associate to bring the relevant subject matter to the attention of the Judge. For example "Would you kindly inform his Honour/her Honour of the following: …".
2. If the correspondence is in response to a communication from the court, so that Rule 53(a) applies, a copy should be provided to the opponent, and mention of that made in the communication to the Associate.
3. If the correspondence is under Rule 53(b), mention should be made in the communication to the Associate that the opponent has consented to the content of the communication, and a copy should be provided to the opponent.
4. If a party wishes to communicate a matter of substance to the court and the opponent does not consent under Rule 53(b), the only proper course is to communicate that circumstance to the Associate (but not the matter of substance itself) and to request that the Judge list the matter for further argument, on notice to the parties."
Anyone know how to prosecute a tort?
Last edit: by srldad101
Last edit: by The Wolf
the obligations not to make such communications imposed under rules 53, 54 and 55 of the Barristers’ Conduct Rules 2011;
(b) the risk that such communications pose for the reasonable apprehension of bias on the part of the recipient judge;
(c the risk of the practitioner concerned being in contempt of court;
(d) the risk of the practitioner concerned engaging in professional misconduct;
(e) the risk of the practitioner concerned being personally liable for the costs thrown away in the result of the improper communication.
FEDERAL CIRCUIT COURT OF AUSTRALIA COMMUNICATING WITH JUDGES’ CHAMBERS - Published June 2011
NOTICE TO LITIGANTS AND LEGAL PRACTITIONERS
The Federal Circuit Court operates a docket system. It is timely - particularly given the many litigants who appear for themselves - to remind all parties and practitioners of a number of issues relevant to communications with the chambers of the Judge who has the conduct of a matter.
The Federal Circuit Court encourages common sense management of cases within dockets. As a result, it is recognised that formal and procedural matters can be dealt with by informal processes with significant savings in court time and expense to the parties. For that reason, we accept that consent orders, consent adjournments and the like can be the subject of joint e-mail communication with our Associates.
To that end generic chambers email addresses should be used.
However, all parties and practitioners should otherwise understand the basis upon which contact with Judges (via their Associates) about substantive matters should - or should not - occur.
All such communication must be undertaken with care to ensure that the impartiality and integrity of the Court is not undermined (see R v Fisher  VSCA 100; R v Phillips  QCA 57 and John Holland Rail Pty Ltd v Comcare  FCAFC 34).
It is never appropriate for any party, or any legal practitioner, to attempt to contact a Judge directly about a matter for which the Judge is responsible.
It is not usually appropriate for any party (or any legal practitioner) to contact an Associate of a Judge about a matter unless all parties are in agreement that this is appropriate and for good reason. If agreement cannot be reached and the issue cannot otherwise be resolved then the Associate may be contacted to arrange for the matter to be listed for directions provided that all parties are advised of the request
Should it become necessary to contact a Judge (through an Associate) about any substantive issue relating to a matter, it is expected that:
The party and/or practitioner seeking to contact the Associate will first contact each other party or practitioner involved in the case. Any necessary communication will thereafter be joint and in writing.
In the event that genuine urgency, or other good reason, is said to prevent a joint written communication occurring, the person seeking to contact an Associate should first seek, in writing, consent from each other party/practitioner to contact being made and provide full details of the reason for, and nature of, the intended communication.
In cases of genuine urgency or in the event that consent is not forthcoming within a reasonable period of time, contact with an Associate should be made, in writing, and contemporaneously, a copy of that communication forwarded to each other party/practitioner.
A party should not seek to have oral communication with an Associate about any substantive issue unless there are extraordinary circumstances.
In all cases (unless there are clearly exceptional circumstances) communication from an Associate to parties and/or practitioners about a matter should occur in writing and be sent contemporaneously to all parties/practitioners.
Associates will continue to contact practitioners and parties for the purpose of compliance checks or to check the status of a matter or in accordance with directions of the Court. In such cases, all parties will be contacted and Associates are not permitted to give legal advice.
Circuit Court Advisory
In the case of John Holland Rail Pty Ltd v Comcare  FCAFC 34, Holland submitted that the judge should excuse himself from the proceeding as there had been communications between Comcare and the associate concerning allegations or information that was material to the substantive issues in litigation.
Holland argued that this communication gave rise to a reasonable apprehension that the judge might not bring an impartial mind to the determination of the application. Comcare’s solicitor declined to make an affidavit setting out his conversation with the judge’s associate.
In a strike-out application prior to trial, Holland relied not only on the unilateral communication to the associate but also on the fixing of a directions hearing, which allegedly disclosed differential treatment.
The application was refused. The judge had made it clear that there was general liberty to apply for a directions hearing. It was invoked for matters arising shortly prior to trial and, as Holland conceded, its strike-out application was of an entirely different character.
Comcare’s solicitor then made an unambiguous and comprehensive written denial that it had raised issues of substance with the associate.
The Full Federal Court found that such communications could not raise any reasonable apprehension of bias on the part of a fair-minded lay observer. Sufficient doubt could not be attached to the judge’s reasons for refusing to disqualify himself.
The receipt of an improper unilateral communication by an associate from time to time is unavoidable but of itself does not involve any impropriety or breach of duty on the part of chambers staff. If, however, there was continued engagement with the associate, such communications may involve impropriety or misjudgment. Practitioners are encouraged to take care when dealing with associates.
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