Problem Question 1

Background-
Under the Australian Solicitor’s Conduct Rules 2015 (hereafter ‘Rules’), every
solicitor have a number duties towards the court and justice system under section 3 of
the Rules1. Even though a legal practitioner is duty to bound to act in the best interest
of the client, however, in case conflicts arise between the interest of the client and
justice system, the duty towards the court will prevail to the extent to which the
interest is inconsistent2.

Applicable provisions-
 As per rule 19 a legal practitioner must not knowingly deceive the court.
 As per rule 20.1, when a client has lied about relevant and material facts or has
falsified some document or witness or has suppressed material information, a
legal practitioner has the duty to advise the client to inform the court about such
lie or falsification.
 As per rule 20.1.5, a legal practitioner has the right to refuse to participate in
court proceedings in case the client had lied or falsified any witness or document.
A legal practitioner also has the duty to inform the court in such situations.

Advise-
 Mr Lampkin should disclose to Ms Thrace that he knows about the conversation
she had with Mr Anders.
 Mr Lampkin should tell Ms Thrace that it is his duty to not deceive the court even
after knowing the truth.
 Mr Lampkin should refrain from representing Ms Thrace unless she agrees to
disclose the truth to the court.
 Mr Lampkin can stop the witnesses from falsely testifying in the court.

Problem Question 2
1
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) s.3.
2
Donna Cooper, ‘Managing your ethical obligations when your client might be lying’, (2019),
https://legalwiseseminars.com.au/insights/managing-your-ethical-obligations-when-your-client-might-be-lying/.
Background-
Accidental disclosure and privileged confidential information has been dealt with
carefully by the High Court of Australia. Even though in the case of Expense
Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing
Pty Ltd3 the NSW Court of Appeal said that when there is a disclosure of documents,
it waives the privilege of being a confidential document. However, the High Court did
not agree to this decision and stated that when it has been clearly stated that the
disclosure was made by mistake, there is no scope of waiving the privilege. There can
be another possibility that the opposition lawyer already read the documents that was
sent mistakenly. In this regard the case of GT Corporation Pty Ltd v Amare Safety Pty
Ltd decided that the court has huge discretion in such situations and decides whether
it would be reasonable to let the opposition use the document 4. The administration of
justice should not be hurt by removing the opposition lawyer.

Advise-
 Being a legal practitioner Dr Baltar should read the decision of the High Court in
the case of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic
Management and Marketing Pty Ltd and GT Corporation Pty Ltd v Amare Safety
Pty Ltd and gain knowledge on what the precedent says.
 Dr Baltar must inform Ms Henderson that he read the document by mistake.
 Dr Baltar must refrain from using the document to gain advantage for Mr Zarek.
 Dr Baltar must convince the Legal Services Commissioner that he does not intend
to use the mistakenly received documents.

Problem Question 3
Background-
The Australian Law Reform Commission and the High Court sufficiently clarified the
position of the law when a judge and a lawyer have a relationship while a court
proceeding is in place. In the case of Charisteas v Charisteas 5 such a situation arose
when the judge and the barrister had a relationship which was not disclosed to the

3
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013]
HCA 46
4
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
5
Charisteas v Charisteas; [2021] HCA 29
opposition until the opposition claimed the same 6. The High Court stated that in case
the existence of such a relationship is not disclosed, it might hurt the administration of
justice and portray potential biasness affecting the outcome of a case. It is hard to see
how the trial judge could have overlooked the need of disclosing the conversations,
especially given that he was dealing with an application to disqualify himself on other
reasons. If the ambiguity inherent in that statement is not enough to make the
hypothetical observer doubt the claim of the barrister that their communications were
not about the substance of the case, it may give the hypothetical observer reason to
doubt his claim that their communications were not about the substance of the case 7.
This is why the High Court ruled that the judges are required to remain isolated from
friends and colleagues during a trial and the existence of such a relationship must be
disclosed to the opposition party.

Advise-
 Mr Keikeya must disclose the relationship with judge Foster to the opposition
party as per the case of Charisteas v Charisteas.
 Mr Keikeya must inform Justice Foster about the precedent that exists with
regard to the relationship between judge and lawyer.
 Mr Keikeya do not need to refrain from having any communication with judge
Foster as long as it does not concern the substance of the matter.

Problem Question 4
Background-
Every person has the right to a fair trial under the human rights regime. Section 21 of
the Human Rights Act 2004 states that everyone has the right to be heard in court
which is impartial and that protects the moral of the citizens 8. Further, as stated by the
Australian Human Rights Commission that any matter of discrimination and breach of
human rights must be reported following proper procedure rather than making
accusation in public9. This is because any information disclosed in public has the

6
Naomi Neilson, ‘High Court reviews ‘inexcusable’ relationship between judge and barrister’, (2021),
LawyersWeekly, https://www.lawyersweekly.com.au/biglaw/31207-high-court-reviews-inexcusable-relationship-
between-judge-and-barrister.
7
Naomi Neilson, ‘Relationship between judge and barrister ‘particularly troubling’, (2021), LawyersWeekly,
https://www.lawyersweekly.com.au/biglaw/32723-relationship-between-judge-and-barrister-particularly-
troubling.
8
Human Rights Act 2004 (ACT) no.13. s.21.
potential to include sensitive information. In addition to that not every citizen has the
right to question the authority of the government.

Advise-
 Ms Faust must lodge a complaint following the official procedure as set out by
the Australian Human Rights Commission.
 Ms Faust must ensure that she has the ability to back up her claims with
documented evidence.
 Ms Faust must apologise to the government for her testimony given in her
interview to a journalist.

Problems Question 5
Background-
The existence of a relationship between a judge and a lawyer has been restricted by
the High Court of Australia and the Legal Services Commission. The popular case of
Charisteas v Charisteas decided that a judge and a lawyer must refrain from any
communication during a trial as it might affect the administration of justice 10. The
court in this case stated that even though a party to a case should not afraid of any
relation between the judge and opposition counsel if they are not guilty, however, the
court in a dissenting opinion stated that it is difficult to ensure that the opposition
counsel will not engage in a discussion about the substance of the case and therefore it
is better to not have any communication during the time of proceedings.

Advise-
 Mr Adama must refrain from having any communication in relation to the case
with Justice Roslin.
 Mr Adama must refrain from engaging into conversation regarding the
difficulties of the case.
 Mr Adama must not mislead to judge to tamper with the witnesses

Problem Question 6

9
Australian Human Rights Commission, ‘Making a complaint’, (n.d),
https://humanrights.gov.au/complaints/make-complaint.
10
Charisteas v Charisteas [2021] HCA 29
Background-
The case of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic
Management and Marketing Pty Ltd11 decided that a disclosure of document by
mistake must not be detrimental to the parties. It also said that in case such a
disclosure is done by mistake, the party who received the document has the duty to
return the document. Similarly the High Court ruled that in case a party already read
to contents of the documents, the court in the case of GT Corporation Pty Ltd v
Amare Safety Pty Ltd decided that the court has the discretion to decide whether or
not to waive the privilege. In addition to that no person should put allegations against
the government in public and without any proper evidence. It amounts to defamation
in case such allegations are not proved.

Advise-
 Ms Ishay must inform the opposition about the fact that she received an email and
it disclosed the truth.
 Ms Ishay must approach the court on the basis of the decision in the case of
Amare Safety Pty Ltd and use the court’s discretion to decide whether the
disclosure will be beneficial for Ms Ishay or detrimental to the government or
whether the benefit of Ms Ishay will outweigh the detriment caused to the
government.
 Ms Ishay must lodge complaint in the official procedure rather than alleging
through social media.

11
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013]
HCA 46
Bibliography
A. Cases
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and
Marketing Pty Ltd [2013] HCA 46

Charisteas v Charisteas [2021] HCA 29

GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123

B. Legislation
Human Rights Act 2004 (ACT) no.13

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

C. Others
Australian Human Rights Commission, ‘Making a complaint’, (n.d),
https://humanrights.gov.au/complaints/make-complaint.

Donna Cooper, ‘Managing your ethical obligations when your client might be lying’,
(2019), https://legalwiseseminars.com.au/insights/managing-your-ethical-
obligations-when-your-client-might-be-lying/.

Naomi Neilson, ‘High Court reviews ‘inexcusable’ relationship between judge and
barrister’, (2021), LawyersWeekly,
https://www.lawyersweekly.com.au/biglaw/31207-high-court-reviews-
inexcusable-relationship-between-judge-and-barrister.

Naomi Neilson, ‘Relationship between judge and barrister ‘particularly troubling’,

(2021), LawyersWeekly, https://www.lawyersweekly.com.au/biglaw/32723-
relationship-between-judge-and-barrister-particularly-troubling.