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Fairness and Candour in

the Adversary System

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Interference with witnesses

Legislative provisions make it an offence to induce the eliciting of false evidence or to intimidate a witness.

Law Council Model Rules 17.1 ² ¶A practitioner shall not advise or suggest to a witness that false evidence

should be given

17.2 ² ¶A practitioner must not suggest or condone another person in any way toany prospective witness the content of particular evidence which the witness

should give at any stage in the proceedings

Kennedy v Council of the Incorporated Law Institute of NSW ¶it was enough that it amounted to grave impropriety affecting his or her 

professional character, and was indicative of a failure either to understand or topractice the precepts of honesty or fair dealing in relation to the courts, his or her client or the public·,

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Duty of Candour & Frankness

The duty of candour seeks to ensure that the parties providefull and frank disclosure in order for the court to adequately

determine the issues between the parties.

Rule 21, 22 Barrister·s/Solicitors· Rules:

P

ractitioner mustn

ot knowingly make a misleading statementto a court on any matter and must take all necessary steps to

correct any misleading statement made after it becomes aware

that the statement is misleading.

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Fact Scenario

West Ham United and Manchester United are involved in a

legal dispute over the controversial signing of the prolificstriker, Carlos Tevez. West Ham assert that the signing was

invalid and Tevez should be returned with costs or in the

alternative, that significant damages be paid. West Ham

United are seen as a financially weaker club compared to

the well-supported Manchester United. West Ham are seento have favourable prospects.

V.

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Letter Correspondence

Dear West Ham,

You have not responded within our requested time frame. Do it now.

Best,

Lawyers of Manchester United

Email Correspondence

Hi West Ham,

We do not feel it is necessary that we schedule a discussion with our client. We willarrange a time when we feel it is right .

V.

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Unreasonable Delay

Elements

Gross neglect and delay

Repeated occurrence

Serious professional disrepute

Consequences

Can constitute professional misconduct if repeated (Re Nelson (1991) 106

ACTR 1). Thus a single instance will not result in suspension or striking off (Mellifont v Queensland Law Society Inc [1981] Qd R 17).

Relief will not be given for conduct that is intended to induce a party to incur extra expenses (Queensland Trustees ltd v Drysdale Hendy & Co [1992] 2 QdR 625).

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Rudeness & Discourtesy

Elements

Aggressive and discourteous tone (Garrard (t/a Arthur Andersen & Co) vEmail Furniture Pty Ltd (1993) 32 NSWLR 662)

Language

Disregard to usual and proper courtesies of court procedures ( Hugo v R [2000]WASCA 199

Consequences

In court, rudeness and discourtesy can lead to contempt ( Lewis v Ogd en (1984)153 CLR 682)

Correction by the court and disapproval from peers

May also lead to unnecessary delay