lls presentation
TRANSCRIPT
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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