The Federal Court of Australia in CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242 has held that barristers engaged on a limited ‘direct access’ brief are not required to comply with r 4.03 of the Federal Court Rules 2011 (Cth) (“FCR”). Rule 4.03 provides that, if a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file and serve a notice of acting, in accordance with Form 4.
Background
The proceeding before the Court was an appeal by a non-English speaking person in a migration matter. The appellant’s notice of appeal suggested that the appellant was self-represented at the time the appeal was commenced and no notice of acting by any lawyer was filed after that time. In the meantime, acting on the basis that the appellant was and continued to be unrepresented, the Court arranged for an accredited interpreter to attend at the hearing of the appeal at public expense. In addition, orders for case management of the appeal were made which included orders that the appeal book be filed by the respondent if the appellant was not represented by a lawyer. The appellant filed a list of authorities and an outline of submissions to which a draft Amended Notice of Appeal was annexed but, while the list of authorities and submissions indicated that they had been prepared by counsel, the draft Amended Notice of Appeal did not include at the foot of the document details of any lawyer representing the appellant. No notification of any kind was given to the Court that a lawyer would present oral argument on behalf of the appellant at the hearing. When counsel appeared for the appellant at the hearing, the Court of its own initiative raised the question of whether r 4.03 of the FCR applied to counsel in the circumstances. The question of the application of r 4.03 to the appellant’s counsel then came to be separately addressed on an interlocutory basis, with leave being granted to the New South Wales Bar Association to intervene in the proceedings and to make submissions on the question.
Decision
The question was dealt with by Charlesworth J who concluded that r 4.03, properly construed, did not impose an obligation on the appellant’s counsel to file and serve a notice of acting. In coming to this conclusion, her Honour accepted the following submissions of the Bar Association “notwithstanding the disruptive case management issues” for the Court’s processes (at [84]-[87]):
- Having regard to its wider context, the purpose of r 4.03 was to inform the Court and other parties of a change in the party’s status, after the commencement of a proceeding, from that of a person who was not represented by a lawyer with general authority to act, to that of a person who was so represented.
- Accordingly, the FCR regulating the content of a notice of appeal or originating application imposed no obligation upon a party to identify that he or she was represented by a lawyer, unless the party was “represented by a lawyer who has general authority to act for that party” within the meaning of r 11.01(2) of the FCR (dealing with an address for service), in which case the party’s address for service had to be that of the lawyer.
- It followed that the FCR made no provision for the filing of a notice of acting by a lawyer appointed by a party after the proceeding had commenced if that lawyer did not have a general authority to act.
Her Honour went on to say as follows (at [92]-[95]):
- If the relevant rules of the FCR were intended to oblige a party to disclose that they had directly appointed a lawyer with other than a general authority to act, the rules and forms would have made express provision both for the identification of such a lawyer and for the nature and scope of the limitation on the lawyer’s retainer to be notified to the Court but the relevant rules and forms made no such provision.
- Therefore, a barrister directly appointed by a party for the purpose of making oral and written submissions on the party’s behalf at a hearing did not need to be identified on the process by which proceedings were commenced. It followed that r 4.05 of the FCR (dealing with termination of a retainer by a lawyer) should not be construed so as to require the filing of a notice of ceasing to act by a person retained from the outset as a barrister on a limited direct access brief.
- Rule 4.03 had to be construed so as to operate harmoniously with the foregoing scheme. There being no obligation on a party to disclose the appointment of a direct access barrister at the commencement of a proceeding, r 4.03 should not be construed to impose an obligation upon a direct access barrister to file a notice of acting if he or she was appointed after the proceedings were commenced.
- The FCR was premised on an assumption that a party would either be unrepresented or represented by a lawyer with general authority to act but neither of these cases applied to the appellant. No provision was made to accommodate what seemed to be an increasing trend in the migration practice area whereby parties directly appointed a barrister for limited tasks without the intermediary of an instructing solicitor and without notifying the Court. If the non-disclosure of the retainer was potentially disruptive of the Court’s processes, the disruption was to be avoided firstly by the barrister observing the usual courtesies and standards ordinarily expected of a practitioner in his or her dealings with a court and, failing that, by the Court exercising its express and implied powers to manage its own proceedings.
Her Honour made it clear that her reasons were limited to direct access barristers and were not to be taken as suggesting that a barrister retained in the conventional way by a party’s solicitor having a general authority to act was required to file a notice of acting, that obligation belonging to the party’s solicitor (at [4]; see also [45]).
The decision overcame a potential constitutional issue – that of whether there was any inconsistency, within the meaning of s 109 of the Constitution, between r 4.03 of the FCR and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), in particular, r 13 of those Rules which prohibits barristers from, amongst other things, filing (other than filing in court) or serving any process of any court, a notice of acting being a process of court (see [36]-[41]) .
However, her Honour did say that the finding that r 4.03 did not impose an obligation on a direct access barrister to file and serve a notice of acting did not mean that such a barrister could not or should not be required by an order of the Court to disclose the fact of his or her engagement by other means nor that other rules of the Court ought not be construed so as to impose obligations directly upon such a barrister (at [42]).
Her Honour further said that, under r 2.16 of the FCR, which requires a document filed in a proceeding to, amongst other things, contain the name of any lawyer responsible for the preparation of the document at the foot of the front page of the document, the lawyer’s name had to be identified in the footer of the document, irrespective of the capacity in which the lawyer was engaged, because to represent such a document as having been prepared by a self-represented party would be apt to mislead the Court (at [100]).
