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Duties of lawyers opposed to the unrepresented

August 12th, 2010 · No Comments

Justice of Appeal Macfarlan with whom Justice of Appeal Tobias and Acting Justice of Appeal Sackville agreed said this in Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [42]:

‘Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’

The whole of the relevant passage read as follows:

‘Duties of represented litigant and its lawyers when opposed to unrepresented litigant

41 The respondent’s pre-appeal-hearing Written Submissions dated 4 November 2009 were not of assistance to the Court in considering the appellants’ earlier Written Submissions, to which they should have responded directly, because they did not refer to those submissions at all. These submissions of the respondent did little more than refer to the parts of the judgment below that were relevant to the appellants’ grounds of appeal listed in their Notice of Appeal. Following a direction given by the Court at the hearing of the appeal on 3 March 2010, the respondent lodged Written Submissions dated 19 March 2010 that dealt specifically and in detail with the contents of the appellant’s Written Submissions.

42 Submissions of this type should have been provided by the respondent at the outset, without the need for intervention by this Court. Section 56(3) of the Civil Procedure Act 2005 imposes an obligation upon parties to civil proceedings to assist the court to further the overriding purpose identified in s 56(1) of facilitating “the just, quick and cheap resolution of the real issues in the proceedings”. Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’

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Tags: duty to court · Ethics · litigation ethics