Revision Lecture Notes on Past Exam Papers September 2012 - Question 3 Start with an introduction addressing the path to being struck off. First being found liable for professional misconduct. Go into professional misconduct s497 LPA. Speak about fitness to practice. Also speak about good fame and character, but only needs to be brief. Then, discuss whether the act or omission which has led to the professional misconduct contained an element of dishonesty, because dishonesty is a common theme in the cases in deciding whether or not a practitioner is to be struck off. Discuss the policy for striking off, that is, it s for the protection of the profession and community: Clyne. Mention Beazley JA in Walsh where she said the purpose is also educative. Then relate the facts in the question to the answer, and discuss the facts and how they relate to Davis. Also how they relate to Del Castilio and Thomas. Each of those cases deal with an act or omission outside of practice, we should mention s497 (1) (b). Then conclude whether or not based on the facts and law whether Ernest Achiever should be struck off. Always bear in mind whether the issues in the question have been dealt with, and also keep in mind the main issue, which is whether Ernest should be struck off. Make sure you don t just write about the policy of striking off or something make sure you answer the question and stay relevant! Note that this question isn t about professional misconduct, it s about what it takes before a practitioner should be struck off (hence discussing the protection and education discussion). Of course, s497 would have to be discussed somewhat, and it may be mentioned that there are common law formulations of professional misconduct (as found in Allinson and Kennedy), but don t dwell on what is professional misconduct. The question isn t tell me whether Ernest Achiever will be found liable for professional misconduct. Remember that Fullagar J in Ziems don t take as hard a line for personal misconduct as they do for professional misconduct. **Remember that the ultimate question in professional misconduct cases is whether the individual is fit to remain on the roll, whether dishonesty is absent or present. So dishonesty, or conduct of some other sort can make a practitioner incompatible with being on the roll.
September 2012 - Question 4 Good opening would be paragraph at the bottom of 227-top of 228 of Rondel which talks squarely about the perceived tension between duty to court and client. Then, say that despite the perceived tension, the duty to the court is paramount, and superior to the duty to the client: Rondel and Clyne. Then, go into the body of the response that there may be a tension from a practical point of view, but that tension should be dispelled from a theoretical point of view (i.e. counsel must be honest at all times with the court, even if it s at the detriment to his client (Universal Bulb Factory as opposed the contrasted result in Meek v Fleming which give a boundary to the extent that honesty and candour to the court is stretched). An advocate must not attempt to frustrate the court process for his own client s forensic advantage so don t do everything possible for your client, if that requires overstepping your duty to the court: Kennedy, Bellanto and Costello. Next talk about how the advocate can t overstep the mark regarding casting aspersions on the opposite party in order to gain a tactical advantage for your client: Clyne and Bar Rule 60. An advocate mustn t withhold authorities even if those cases harm his own client s case: bottom of 227-top of 228 Rondel, now also found in Bar Rule 31. Finally, talk about how the advocate must confine his questioning to the relevant issues and not chase every rabbit down every burrow as may be desired by the client: Giannarelli, now in Bar Rules 25 and 41. Have a strong conclusion, about whether there is a tension or whether there isn t a tension and it s in fact illusory. March 2012 - Question 3 Bellanto and Costello spring to mind on the facts of this case. Start by discussing the paramount duty to the court, cite Clyne and Rondel. Then mention that despite an advocate may believe he is losing or not doing well, he can t frustrate the court process by arguing with the judge and hoping that through that argument the case will be aborted or adjourned, because if he does that then he puts the duty to the court below the duty to the client. In doing so, and in trifling with the judge, the counsel has lost the courtesy that should be engendered towards the court. Make reference to Bellanto where there was an attempt to have the case aborted through yelling at the judge he breached his duty to the court by putting that duty below his duty to the client. Also Costello with the lunch adjournment. Putting duty to the court below duty to the client, is a breach of the advocate s duty.
Finally, address what happened in the closing address. You can t submit unfounded allegations when no such evidence was put before the court. The 2 cases of unfounded submissions are: Smout and Clyne. Mention the relationship to Bar Rules 59, 60, 63 and 64. Just mention the bar rules as they relate (i.e. unfounded submissions without substantiation Smout, Bar Rule 63 and 64. You could discuss contempt as well but it s not really answering the question. March 2012 - Question 4 Start by saying that in Australia, advocate s immunity exists: Gianarelli and has been affirmed: D Orta. Include in introduction that nonetheless, there has been a gradual but evident narrowing of the scope of advocate s immunity since it s introduction in 1860 in Lord Chelmsford. Then go through how the immunity has been narrowed. In Rondel, Morris greatly narrowed the scope from Lord Chelmsford. Then, McCarthy J further narrowed the scope of the immunity. That scope was tested in Saif Ali to show that in the UK, not even the negligent drafting of a statement of claim fell within the scope. But in Australia, although the doctrine exists, of the 5 public policy grounds in Rondel, the HCA adopted only 1 (in Giannarelli the HCA adopted the relitigation argument). The full court of the Federal Court has found, in line with Saif Ali that negligently drafting a statement of claim is outside the scope, so the doctrine has been narrowed and narrowed, but it nevertheless exists. The we examine whether it will continue to exist (UK abolished in Simons and NZ abolished in Chamberlain). D Orta followed Giannarelli. In the short term, Australia will carry the doctrine on because we have our own case law independent to the UK: D Orta. In the long term, the legislature may change or abolish the doctrine, or the HCA may in future be constituted by more liberally minded judges who believe that the trend in other countries is correct and there should be a right for a wrong, and abolish the doctrine. However, one could say that based on the strong judgement in D Orta, and because of our differences to the UK (they are tied to the European system of law), we should therefore find the doctrine will continue in Australia for a very long time. We can also discuss the economic effect of abolishing the doctrine (that is, barristers will leave the profession because professional indemnity insurance will rise so much). If we raise this issue, we should also say that this doesn t seem to have been an impediment in the other common law countries to the abolition of the doctrine.
Question 3 - September 2011 Don t just write about the duty to the client, even though that s the quote. Make sure you answer the question asked. It s not tell me everything you know about duty to the client, it s what are the limits of duty to the client? What are the limits? Because duty to the court comes first, there must be limits. 1. Don t make closing submissions without evidence: Smout, Clyne. 2. Don t make opening submissions without evidence: Clyne, Bar Rules 59, 60. 3. Don t act outside authority/instructions, Chelmsford, Birke, Phillips. 4. Don t mislead the court: Meek v Fleming, Bar Rules 26 and 29 and Re B. 5. Can t go to extreme limits by frustrating the court process: Bellanto, Costello and Kennedy. Spend about a paragraph on each of those duties/limits. We don t need to discuss the factual situation of the case. Also mention Austin, which is about cross-examination. We can combine numbers 1 and 2 into 1 longer answer to those two principles. Question 4 - September 2011 There are various duties where the duties of the prosecutor haven t been fulfilled. (a) Not to strive for a conviction at all costs: Bathgate, and Bar Rule 83. Then go to the facts and apply that law to the facts. Apply Pernick, Bar Rule 82 Don t make the jury prejudice: Meier and Bar Rule 64 and go to the facts Avoid material irrelevant to the prosecution of the accused Bar Rule 85 Don t argue a proposition which the prosecutor doesn t believe will not contribute to a finding of guilt Don t impose a vindictive sentence Always relate those principles back to the facts in the question. (b) Prosecutor has discretion about calling witnesses: Richardson, but he should call every material witness unless they re unreliable: Richardson, or they re truly incapable of giving evidence, and those reasons have been given to the Court: Whitehorn. Go to the issues listed in Bar Rule 88. Bar Rule 88 is particularly relevant (a), (b), (c), etc.
(c) Apostolides. Go through the 8 principles we discussed in class of that case and go apply them to the question asked. You don t have to go through all 8 principles, just the ones that are relevant to the question asked.