News & Insights

Legal Guide to Court Etiquette

The recent decision of Amirbeaggi (Trustee) in the matter Billiau (Bankrupt) v Biliau [2023] FedCFamC2G 949 serves as a timely reminder of legal practitioners’ duty of formality before the Court in this age of technology.

The case

On 4 August 2023, proceedings were commenced in the Federal Circuit and Family Court’s Bankruptcy jurisdiction.  In mid-September 2023, the Court made orders that “the respondents file and serve the Notice of Opposition and Affidavits by 12 October 2023”.

On 17 October 2023, five days after the time for compliance had passed, a “Law Clerk” employed by the solicitors for the second respondent sent the following email to the Chambers of Judge Given:

“Dear Associate

We refer to the abovementioned proceedings listed for 2 November 2023 before Judge Given.

We attach signed short minutes of order shared with the Court concurrently.

The Applicant and First Respondent’s solicitors have consented to the Orders and have been copied into this email.

Please have the Directions hearing realized in accordance with the Orders.

Kind regards, “

The proposed consent orders sought to extend the timetable and vacate an upcoming directions hearing.

Upon receipt of this email, Judge Given listed a directions hearing summoning the parties to appear in Court:

  • to address the failure of the respondents compliance with the orders made on 12 September 2023; and
  • explain why (on what basis and by which authority) the Court could be directed by a law clerk to make orders and relist proceedings.

Judge Given’s decree

In her judgment, Judge Given commented that “the Court is, with increasing frequency, receiving correspondence from parties in the nature and terms of the October email” – that being informal correspondence from non-practitioners.

As a result of the increasing informal behaviour by parties experienced by the Court, Judge Given made the following observations:

#1 – Orders made by the Court, whether by consent or otherwise, must be complied with.

#2 – If a party anticipates that they will be unable to comply with orders, the party must apply to the Court requesting an extension or modification of the orders prior breaching the orders
Any party who apprehends an inability to so comply should approach the Court in advance (and in accordance with the terms of any specific liberty to apply) proffering an explanation for the foreshadowed inability to comply. It should be a rare state of affairs indeed in which the Court is approached for dispensation after orders have been breached. In such a circumstance, an explanation is not only warranted, but essential, to explain to the Court why the orders have been breached and to seek any further indulgence. The aforementioned explanations will most appropriately be proffered by Affidavit. 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 – Legal practitioners must act formally when dealing with the Court, even behind a screen
Legal practitioners in Australia (whether solicitors or barristers) have a duty of formality before the Court, in terms to the following effect:

A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

#4 – Email correspondence is just as important (and should be just as formal) as appearances in Court

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.

#5 – The Court has the final say on what orders are made

There is arguably nothing so informal, or possibly arrogant, as to approach the 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”: see Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 at [36]).  The concluding remark of “Kind regards” or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.  (Well, this is a sin we all commit.)

#6 – Only legal practitioners (not clerks) should communicate with the Court

Where a party is represented, submissions should not be made to the Court by anyone other than a legal representative. An un-admitted law clerk would not, without leave, be permitted to appear in Court for a party. As such, non-legal staff in law firms should not write to the Court to make substantive representations and/or seek orders. Supervision arrangements for lawyers who do write to the Court should also be stringent. Conduct or submissions which are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the Court.

#7 – Covid-19 and the pivot to online is the most likely catalyst for the increase in informal behaviour

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.

#8 – Using emails does not mean you abandon formality

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.

#9 – Expedience and formality are not mutually exclusive

The advent of the use of email between legal practitioners and Court was, inter alia, to enable parties to approach chambers of the judge quickly for case management purposes. Quickly doesn’t mean sloppy. And it certainly doesn’t mean informally. Expedience and formality are not mutually exclusive.

In relation to proposing consent orders, Judge Given held that:

Approaches to the Court, even for case management events such as a directions hearings, must comply with the duty [of formality before the Court]. The proposal of consent orders should be undertaken in terms which properly acknowledge that the Court retains a full discretion as to whether they will be made, and in which terms. Consent orders are proposed consent orders unless, and until, the Court makes them. No correspondence to the Court should be in terms to the effect that the parties have reached agreement and are simply informing the Court of a change to the orders. No correspondence to the Court should direct the Court to relist a matter, simply because the parties have agreed to a date.”

Primary, and important reminders 

Parties must comply with Court orders.  There is no “but”.

If a party anticipates that it will not be able to comply with an order of the Court, then that party must approach the other parties and seek their consent to vary the orders.  Whether consent is obtained or not is immaterial to the obligation that a party must communicate that it will not be able to comply with existing orders prior to the deadline in the orders, explain the reasons and provide evidence of why the party is unable to comply, and respectfully seek that the Court vary, modify or substitute orders in the manner it proposes. There is no guarantee that such orders will be made by the Court so the party must approach the Court in advance.  It may well be that an application by summons is required.

Parties must acknowledge the Court’s discretion in making orders in the proceeding, even where proposed orders are agreed between the parties.

Practitioners must always respectfully request the Court to consider the proposed consent orders rather than direct the Court to make the consent orders.  Practitioners must recognise the superiority of the Court (quite literally in the physical sense and legally by way of the rule of law) as well as the case management powers of the Court one of which includes the efficient resolution of the dispute.

Albeit cost-effective, practitioners must ensure that only qualified lawyer communicates with an Associate of a Judge or Associate Judge. The fact that you are behind a screen typing your message does not mean you aren’t “appearing” before the Court –you do not need to be attending a court room and addressing the judge to be qualified as making an “appearance” or falling within the jurisdiction of the Court. We must underline that legal practitioners are officers of the Court, and must abide by their overarching obligations to the Court and other practitioners pursuant to the Civil Procedure Act 2010, and so it is appropriate that only practitioners make representations to the Court and advance their client’s case from whom they obtain instructions.

In this post-COVID era where graduate lawyers, paralegals and law clerks have been introduced to Court procedure and etiquette without stepping foot in a court room, great responsibility falls on the shoulders of senior practitioners to guide the younger generation and teach and model the written and unwritten protocol of communicating with, and appearing before the Court.