Chief Justice's wake-up call to the bar 'n' grill

UPDATE ... "Earl" Warren says the Victorian bar should do some deep strategic thinking about its future ... It has dropped the ball and allowed law firms to steal its turf ... Fight back ... Promote ... Get with it ... Also, the reinvigorated notion of "duty to the court"

Warren: bar's structure is both a strength and a weaknessVic CJ Marilyn (Earl) Warren spent last weekend at the seaside.

On Saturday (March 5) the better part of the day at Peppers, Torquay, was dedicated to VicBar's inaugural CPD conference.

By Sunday (March 6), she had whisked off to the Gold Coast, where she unpacked some thoughts to the Queensland Bar's annual knees-up.

Both speeches are worth reading.

Saturday's epistle was particularly feisty. It was a challenge to the Victorian Bar to wake-up and get with it. Her remarks could apply equally to the other bars around the country which are inward looking and unimaginative.

She pointed out that Victorian and federal courts have never had more judges and magistrates and cases to hear. VCAT alone handled 90,000 cases a year and the federal jurisdiction has expanded extensively in recent times.

"Yet the Victorian bar is reputed to have suffered work shrinkage. It has even been suggested that the reputation and status of the Victorian bar has has dropped. It is said only a very limited number fall into the top national rank of first choice counsel."

There are all the usual explanations for this, including the rise of the national law firms, which mostly have their HQs in Sydney. But, this shift in the litigation axis caught VicBar short.

"Maybe with hindsight, Barristers Chambers Ltd should have acquired sets of chambers in Sydney to encourage members of the Victorian bar to work in Sydney. It is not too late. It would be an interesting step in the interests of the institution of the Victorian bar. Why stop at Sydney?"

The bar's recently released discussion paper on clerking points to a consideration of opportunities to develop relationships with interstate sets of chambers or clerks. This should be pursued.

Warren said the structure of the Victorian bar is both its strength and its weakness.

Low barriers to entry and cheap chambers are just the ticket, but as an enterprise the bar lacks "sharp market focus".

Some still see it as as "an elite secret society" rather than an institution of specialised advocates.

"The Victorian bar does not sufficiently promote itself as a centre of strategy specialists."

The law firms in the early 1990s took the opportunity to minimise, even eradicate, the need for counsel to advise early on about the strengths of a case and the strategy to be adopted and then give advice on evidence.

The firms moved in for the kill and they approached litigation on a "risk aversion basis - they must cover and promote every point, just in case".

"The bar largely failed to respond to this development."

The CJ asked:

"Why not advertise in the commercial press: 'Have you met your barrister yet? How much is your lawyer charging before you will see your barrister'?"

Then there is the decline in the quality of advocacy.

"Many barristers do not understand the components of advocacy.

I have experienced it myself as a trial judge, and commercial judges tell me, time and again, that many commercial barristers do not know how to lead a witness, how to cross-examine or re-examine effectively or how to make persuasive, penetrating submissions other than in written form."

Yet, Warren believes a bright new dawn beckons. "A new era awaits the Victorian bar."

More global 500 companies are based in Melbourne than Sydney; there is the significance of the unique "Collins Street spine"; and on recent figures Victoria outpaced NSW on economic performance.

What needs to happen, according to the CJ, is for the bar to get close to Indian lawyers, and to explore opportunities in China and Singapore. "Why not set up chambers in Singapore?"

"The bar cannot continue to do things in the same traditional way."

The reforms in England, where barristers can engage in "mixed partnerships" should be examined. Barristers should also get with the technology, and social media.

"Why not set-up a criminal bar Twitter account to publish research, papers, case summaries and the like?"

Three important suggestions from the CJ were:

• The bar must devise strategies to draw back and seize control of litigation in Victoria;
• It must reconfirm and market its skills in advocacy;
• It must market what it has to offer - value for money that is not time based.

In other words, some deep strategic thinking about the very nature of the bar.

See the Chief Justice speech: Playing at futurology

*   *   *

With all that ringing in the ears of Melbourne's finest, Warren scooted off to the Gold Coast for a Sunday session with the Queensland bar where she spruiked the message about the duty to the court - the duty to keep things under control and moving forward.

There was no finer way to start than with Dyson Heydon's famous four paragraphs from Aon Risk Services v Australian National University:

"The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other."

She then picked up on Thomas v SMP where Pembroke J was lumbered with a 500 page affidavit, containing "mostly irrelevant material". Pembroke said:

"Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary."

Parliaments and courts are now addressing the "languor" and "irrelevancy" problems.

Ronald Sackville thinks the High Court's decision in AON v ANU will have the effect of transforming the judicial role from passive decision maker to active manager of litigation.

The Civil Procedure Act in Victoria, which came into force on January 1 establishes an "overarching goal" - the just, efficient, timely and cost-effective resolution of the real issues in the parties' dispute.

The fundamental difference with previous aspirational statements of this kind is that requirement is now a "legislative command".

Importantly, the command applies not only to lawyers and their practices but to the parties themselves. A legal practitioner, or a law practice, must not cause the client to contravene any overarching obligation in civil proceedings.

Contraventions will be dealt with, most commonly, by costs orders.

Warren CJ looked at three recent examples that impacted on duties to the court.

• In the civil penalties case of Morley v ASIC, the NSW Court of Appeal said that by failing to call a key witness ASIC had failed to prove that the Hardie directors had breached their duty to the company by approving the release of a misleading statement.

Warren observed:

"The duty to ensure a fair trial is an element of the duty to the court."

• There was also a recent example in a criminal case in Victoria where a prosecutor had failed in her duty to the court.

In AJ v R, the Victorian Court of Appeal found that prosecutor Carolyn Burnside had failed to reveal to the defence and the court that she knew from an earlier trial that the victim was not a credible witness. See Prosecutor breaches duty.

Warren said that what the AJ case demonstrates is that a lawyer must always acknowledge the way in which the vulnerability of the other parties may affect his or her duty to the court.

• Her third example concerned a case of an unrepresented litigant in a planning case.

Pagone J in Hoe v Manningham City Council considered an application for leave to appeal a decision of VCAT. The applicant was self-represented and claimed that the tribunal's decision contained errors of law.

Pagone said that the respondent's counsel encouraged an interpretation of the applicant's claim that ultimately did not assist the court to come to the correct conclusion.

He went on to say that the duty of litigants and the court itself in cases like this require careful regard to ensure the unrepresented litigant is "neither being unfairly disadvantaged nor unduly privileged".

The Victorian CJ's message is that the duty to the court is more important than ever, particularly when it is interpreted to mean that cases have to be heard and resolved expeditiously and cost effectively.

Read: The duty owed to the court