QLD BAR EXAM – ETHICS WITH COMPLETE SOLUTIONS
GUARANTEED PASS
What is the exam looking for? - ANSWER ->a) identify the
general principle behind the ethical/ bar rule and the reason for
it;
b) answer the question asked and identify any legislative
provision or rule applicable;
c) apply the content of the ethical/ Bar rule (or at least to state
its key components) in addition to stating the rule; and
d) identify where an active role in pursuing an ethical course is
required of the barrister whether that be vis a vis the solicitor,
the client, third party or the court.
Bale v Mills [2011] NSWCA 226 - ANSWER ->Facts: After
hearing, leave was given to "add any references" to certain
issues concerning the application of Browne v Dunn to the
proceedings. Both parties provided further submissions, instead
of merely referring the court to additional authorities or other
references.
Key principles:
· Parties should not place before the court any further material
after a hearing without, or outside of, any leave given.
· Once a matter is reserved, the parties' rights to argument and
to be heard have been exhausted: Bale v Mills.
Outcome: Court ignored further submissions provided.
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 - ANSWER -
>Proofs of evidence:
,Case on lawyers who let witnesses communicate with each
other about there evidence on a group conference call.
Rule:
Lawyers must take proofs of evidence from lay witnesses
separately and encourage them not to discuss their evidence
with others (in particular, with other potential witnesses).
Encouraging witnesses to confer / collude can amount to
unsatisfactory professional conduct or worse.
Ken Tugrul v Tarrants Financial Consultants Pty Ltd [No.2]
[2013] NSWSC 1971 - ANSWER ->There should be no
communication (written or oral) with a judge's chambers in
connection with any proceedings without the knowledge and
consent of the other party other than in specific exceptional
cases:
(1) trivial matters of practice, procedure and administration;
(2) ex parte matters;
(3) responding to communication from court or where directed
to by court order / direction;
(4) exceptional circumstances.
AND:
· Sending an inappropriate communication with a disclosure of
the other party's lack of knowledge or consent does not cure
any impropriety.
, Legal Services Commissioner v Mullins [2006] QLPT 12 -
ANSWER ->Settlement negotiations anticipate a measure of
honesty from both parties.
Honesty extends outside of the courtroom
Cannot make a 'positive' claim on a dodgy claim
Tri-star Petroleum Company & Ors v Australia Pacific LNG Pty
Limited & Ors [2017] QSC 136 - ANSWER ->When express
undertakings as to disclosure of confidential information:
Default position there is a implied undertaking.
Sometimes an express is needed (by whom?)
• Party receiving compelled disclosure must not use it for an
unrelated purpose, unless it is received into evidence: Hearne v
Street. • Third parties also bound if aware of material's origins
in legal proceedings. • Implied undertaking usually enough to
protect confidentiality, but exceptional circumstances may
require express undertaking (e.g. trade rivals): Mobil Oil
Virgtel v Zabusky (No 2) [2009] 2 Qd R 293 - ANSWER ->Facts:
After hearing, Counsel forwarded further submissions to Court
in circumstances where further submissions had not been
requested and leave not been sought.
Key principles: Parties must make their submissions at the
hearing afforded them by the Court. Further submissions may
only provided if court requests or leave granted.
Outcome: Court declined to receive further submissions.
GUARANTEED PASS
What is the exam looking for? - ANSWER ->a) identify the
general principle behind the ethical/ bar rule and the reason for
it;
b) answer the question asked and identify any legislative
provision or rule applicable;
c) apply the content of the ethical/ Bar rule (or at least to state
its key components) in addition to stating the rule; and
d) identify where an active role in pursuing an ethical course is
required of the barrister whether that be vis a vis the solicitor,
the client, third party or the court.
Bale v Mills [2011] NSWCA 226 - ANSWER ->Facts: After
hearing, leave was given to "add any references" to certain
issues concerning the application of Browne v Dunn to the
proceedings. Both parties provided further submissions, instead
of merely referring the court to additional authorities or other
references.
Key principles:
· Parties should not place before the court any further material
after a hearing without, or outside of, any leave given.
· Once a matter is reserved, the parties' rights to argument and
to be heard have been exhausted: Bale v Mills.
Outcome: Court ignored further submissions provided.
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 - ANSWER -
>Proofs of evidence:
,Case on lawyers who let witnesses communicate with each
other about there evidence on a group conference call.
Rule:
Lawyers must take proofs of evidence from lay witnesses
separately and encourage them not to discuss their evidence
with others (in particular, with other potential witnesses).
Encouraging witnesses to confer / collude can amount to
unsatisfactory professional conduct or worse.
Ken Tugrul v Tarrants Financial Consultants Pty Ltd [No.2]
[2013] NSWSC 1971 - ANSWER ->There should be no
communication (written or oral) with a judge's chambers in
connection with any proceedings without the knowledge and
consent of the other party other than in specific exceptional
cases:
(1) trivial matters of practice, procedure and administration;
(2) ex parte matters;
(3) responding to communication from court or where directed
to by court order / direction;
(4) exceptional circumstances.
AND:
· Sending an inappropriate communication with a disclosure of
the other party's lack of knowledge or consent does not cure
any impropriety.
, Legal Services Commissioner v Mullins [2006] QLPT 12 -
ANSWER ->Settlement negotiations anticipate a measure of
honesty from both parties.
Honesty extends outside of the courtroom
Cannot make a 'positive' claim on a dodgy claim
Tri-star Petroleum Company & Ors v Australia Pacific LNG Pty
Limited & Ors [2017] QSC 136 - ANSWER ->When express
undertakings as to disclosure of confidential information:
Default position there is a implied undertaking.
Sometimes an express is needed (by whom?)
• Party receiving compelled disclosure must not use it for an
unrelated purpose, unless it is received into evidence: Hearne v
Street. • Third parties also bound if aware of material's origins
in legal proceedings. • Implied undertaking usually enough to
protect confidentiality, but exceptional circumstances may
require express undertaking (e.g. trade rivals): Mobil Oil
Virgtel v Zabusky (No 2) [2009] 2 Qd R 293 - ANSWER ->Facts:
After hearing, Counsel forwarded further submissions to Court
in circumstances where further submissions had not been
requested and leave not been sought.
Key principles: Parties must make their submissions at the
hearing afforded them by the Court. Further submissions may
only provided if court requests or leave granted.
Outcome: Court declined to receive further submissions.
