The Importance of Adequate Counsel

When solicitors brief Counsel, whether it be for a hearing or to provide an advice/opinion, they are entrusting their client’s case to that Counsel.  It is unlikely that a solicitor ever checks to ensure that Counsel is in fact entitled to practise.  In a Division 1, first instance decision of Schnur & Urbina [2024] FedCFamC1F 374, the Court was required to deal with such an issue.

In this matter, Mr B, Counsel for the Respondent Mother had not signed the High Court Register of Practitioners, as is required pursuant to s55B(3) of the Judiciary Act 1903, meaning that he had no right of appearance as a barrister.  Further, Mr B attended Court without having read documents in his brief and, in addition, had accepted a brief in another matter, in a different Court, to be heard at 2pm on day one of these Division 1 proceedings. 

The matter had been before the Court on 14 April 2024, two weeks prior to the final hearing dates, when Mr B appeared.  It was during that exchange that Mr B conceded to the Court that he had not in fact read the brief.  It follows from that exchange that Mr B had no knowledge of the matter in which he was appearing however, Mr B assured the Court that he would be up to speed by the time of the final hearing.

Mr B appeared on the morning of the first day of the Division 1 hearing.  During an exchange with the Court on that day Mr B conceded that he had still not read the brief and considered that he was only retained to cross-examine the father and not for the entire hearing.  It was during this exchange that Mr B disclosed that he had double booked himself and Her Honour specifically advised Mr B that he was not released and that he would have to call his clerk to arrange someone else to appear in the other matter.  To allow Mr B to read the brief the matter was stood down to commence the following day, what would have been day two.

However, at the request of the ICL the matter was re-listed at 3.45pm on day one and all parties notified.  Mr B was not present when the matter was called and had apparently informed the ICL that he did not intend on appearing.  It subsequently became apparent that this was Mr B’s first foray into the family law arena.

The following day, when Mr B still did not appear, the final hearing had to be abandoned and the matter listed for mention a week later.  Mr B did not appear at that mention, the purpose of which was to determine if he ought to be referred to the Legal Services Commissioner.  Given Mr B’s conduct, her Honour caused enquiries to made as to whether Mr B’s name appeared on the High Court Register of Practitioners, it did not.  A referral was thereafter made to the Legal Services Commissioner.

Takeaway

Legal Practitioners owe professional obligations both to their clients and as an officer of the Court.  Those obligations cannot be discharged by accepting instructions in a jurisdiction in which you are ill equipped to act.