Peter Markan v Crime and Misconduct Commission

NOT A SINGLE WORD OF PROTEST Inbox x Lonya Salisbury lonya.salisbury@inbox.com 26 Mar (2 days ago) to me Supreme Court of Queensland, 21 March 2014, case CA 9591 of 2013, Peter Markan v Crime and Misconduct Commission On the basis of the provisions of Article 14 of The International Covenant on Civil and Political Rights - 'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.' I asked Supreme court judges - McMurdo, Gotterson, Morrison - to provide the evidence of their competence as judges. All 3 failed to provide the evidence. Therefore, I reminded them that according to the rules in anglo law - if there is no evidence introduced in court that means that there is no evidence. As there was no evidence in Court of them possessing any competency they did not have any legitimacy to be judges according to democratic principles and international law, therefore I publicly and officially declared them to be a kangaroo court. No objections, NOT A SINGLE WORD OF PROTEST. (Have they realized that they are human rights abusers?) That declaration was pronounced publicly in the Supreme Court and not in the middle of a desert, therefore it carries with it the authority of the Supreme Court as the legal institution. McMurdo, Gotterson, Morrison acknowledged, accepted and admitted that they are illegitimate imposters. (kangaroo court - as in dictionary meaning) Courts do not belong to judges or to lawyers - they belong to people. Therefore, as the responsible citizen, in the absence of any legitimate authority, I took the legal proceedings onto myself. I informed - McMurdo, Gotterson, Morrison - that I am treating them just as the public gallery and they are welcome to listen to my issues I have with 'Crime and Misconduct Commission'. Morrison attempted to query my decision at that point but was convinced to not to interfere with me exercising my unalienable human rights and my citizens duty. Therefore, I presented my case in legitimate court without illegitimate judges. . Information about my battle with the devilish forces in barbaric Queensland ( with the copies of relevant documents ) is on - www.petermarkan.org/ - www.queenslandinstitute.org/ and some others . . You are receiving this email as the person of public importance and the matters this message refer to are not only personal but also public importance as well . Respectfully Peter Markan . This message is sent by Peter Markan 64 Wishart Rd Up . Mt Gravatt Qld . 4122 , Australia petermarkan@queenslandinstitute.org . If this message was sent in error please write word ' remove ' in email to petermarkan@queenslandinstitute.org

PROFESSIONAL MISCONDUCT FOR A LAWYER TO ADVANCE A "HOPELESS" OR "FAILED IN THE THRESHOLD" CASE FOR HIS CLIENT

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 04:10 (8 hours ago) to me The Australian Professional Liability Blog Section 18(d) of the Civil Procedure Act 2010 (Vic) Posted: 13 Mar 2014 04:37 AM PDT Section 18(d) of the Civil Procedure Act 2010 requires litigants and their lawyers alike not to make claims in civil proceedings, or defend such claims, unless ‘on the factual and legal material available to [them] at the time of making the claims’ the claim or defence has ‘a proper basis’. A court may make any order it considers appropriate in the interests of justice if satisfied that a person has breached s. 18(d): s. 29 and may take any contravention into account in exercising any of its powers, including specifically in relation to costs: s. 28. As Derham AsJ said in Matthews v SPI Electricity Pty Ltd (No 2) (below): ‘The overarching obligations [including that in s. 18(d)]: (a) apply to any legal practitioner or any law practice acting for or on behalf of a party: Civil Procedure Act s 10(1)(b), (c); (b) apply in respect of the conduct of any aspect of a civil proceeding, including, but not limited to any interlocutory application or interlocutory proceeding: Civil Procedure Act s 11(a); (c) do not override any duty or obligation of a legal practitioner to a client to the extent that those duties and obligations and the overarching obligations can operate consistently: Civil Procedure Act s 13(1); and (d) must be complied with by a legal practitioner or a law practice engaged by, or on behalf of, a client in connection with a civil proceeding despite any obligation the legal practitioner or the law practice has to act in accordance with the instructions or wishes of the client: Civil Procedure Acts 13(2). In this very workmanlike post, I simply summarise the not particularly illuminating jurisprudence to have emerged around this new provision so far. Sunland Waterfront v Prudentia Investments (14 September 2012) Sunland Waterfront (BVI) v Prudentia Investments [2012] VSC 399 will be the subject of a future post. Erlich v Fleiszig [2013] VSC 63 (22 February 2013) In Erlich v Fleiszig [2013] VSC 63, Lansdowne AsJ had before her an application for an extension of time in which to bring a testator’s family maintenance claim. The deceased’s cousin had been left a bequest of $20,000 but sought half of the $2.2 million estate. Her Honour found that the claim was not hopeless but not strong. The respondent argued that the application should not be allowed because the applicant was in breach of s. 18(d). Her Honour declined to analyse the case that way: ‘Here the second defendant contends that the size of the proposed claim is nevertheless relevant to those first two stages, the issues of responsibility to make provision and whether the existing provision is adequate, as a factor under s 91(p); and is also relevant because of claimed breach of the obligation to make only claims with a proper basis in law and fact under the Civil Procedure Act. I will deal with the second of these contentions first. Section 28(1) of the Civil Procedure Act allows the Court to take contravention of an overarching obligation into account in the exercise of “any power” in relation to a civil proceeding, which presumably would include the grant or refusal of an extension of time to bring a claim. For a contravention fairly to be taken into account, however, clear notice of such an application should be given by the party contending that there has been a contravention to the party said to be in breach. I do not consider that raising the matter in closing submissions is sufficient to make the application or to give notice of it. Further, proof of contravention of the overarching obligation imposed by s 18(d) would require analysis of the “factual and legal material available to (the plaintiff) at the time of making (his) claim” and determination as to whether or not the claim thus made was justified on that material. There is insufficient evidence before me to undertake this analysis. Finally, I accept the submission of the plaintiff that the better point in time to undertake this analysis, if an application in relation to a claimed contravention is to be made under either s 28 or 29 of the Civil Procedure Act, is at the hearing of the substantive claim, after all evidence is given and the Court is in a position to form a view as to the appropriate quantum for further provision, if any.’ Matthews v SPI Electricity (8 March 2013) In Matthews v SPI Electricity Pty Ltd (No 2) [2013] VSC 86 Derham AsJ dismissed an interlocutory application by the plaintiff made through her solicitors Maurice Blackburn. The defendant applied for costs on grounds which included an alleged breach of s. 18 and sought orders that Maurice Blackburn as well as the plaintiff be ordered to pay them. His Honour declined the application for reasons which are not easily summarised. Jane v Bob Jane Corporation (4 September 2013) In Jane v Bob Jane Corporation Pty Ltd (No 2) [2013] VSC 467, a case in which the plaintiff did not plead fraud (see [17]), Sifris J, 4 September) said: ‘The defendants contended that the plaintiff commenced and continued this proceeding in wilful disregard of the facts well known to him. Critical to this submission was the inconsistency between the position Bob Jane took in the Family Court proceeding and the case that he sought to advance in this proceeding. Bob Jane admitted the inconsistency. In particular he admitted that the case he sought to run in this proceeding was contrary to sworn evidence he had given in the Family Court proceeding. However, he sought to explain the inconsistency by saying that he relied on trusted advisors to give him the correct financial information, particularly in light of the fact that he had suffered a stroke. I rejected the explanation and regarded the inconsistency as an important factor in finding against Bob Jane. However, Bob Jane was entitled to run his case and endeavour to convince the Court that his explanation was valid and sufficient. The fact that I disagreed with him says nothing about his entitlement to make the argument. His case was that he did not disregard the known facts but disputed the accuracy and impact of those facts. His evidence fell short and he failed. The facts as found by the Court were only after a trial with evidence and cross-examination. The conclusion after a trial does not necessarily mean that at the outset it was inevitable that the claim would fail. The Court must avoid hindsight analysis, a point made by counsel for Bob Jane.[7] I consider that this case is distinguishable from Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3)[8], a case relied on by Senior Counsel for the defendants. In any event each case must be considered on its own facts and peculiar circumstances and context. In Sunland it emerged clearly at trial that the relevant important witnesses always knew and understood the correct position and that their claim was hopeless. From the cross-examination at trial it was clear that the true position was known at the outset. This case is different. Unlike Sunland it cannot be concluded that Bob Jane always knew that he did not have a proper explanation for the inconsistency in his evidence and that his proposed and attempted explanation was hopeless. It was weak and unsubstantiated as it turned out. This case is not nearly as clear as Sunland and although the matter is finely balanced and not free from difficulty given the critical findings made by the Court, I do not consider that in all the circumstances I should exercise my discretion in favour of awarding indemnity costs. [7] Reference was made to the decision of Redlich J (as his Honour then was) in Aljade & MKIC v OCBC [2004] VSC 351, [36]-[37]. [8] [2012] VSC 399 (‘Sunland’). Finally Croft J regarded the point as one that needed to be fully explored at trial.[9] It was. Bob Jane lost and must pay the costs. [9] Ruling made on 28 September 2012. … Finally, the defendants submitted that Bob Jane breached [s 18] by making a claim that did not have a proper basis … As pointed out above, the findings made after a trial with extensive cross-examination do not by their own force suggest that there was no basis for the claim. It was a weak claim but Croft J permitted the claim to go ahead and Bob Jane was entitled to run his case as pointed out earlier in these reasons.’ Bodycorp Repairers v Maisano (18 October 2013) In Bodycorp Repairers Pty Ltd v Maisano [2013] VSC 327 at [14], Elliott J found that one claim ‘failed at the threshold’ and another relied on an agreement which ‘could never have amounted to a binding agreement’. He said at [25] that these claims may have breached s. 18(d) but declined to order indemnity costs against the party propounding them for the reasons stated in para [15]: ‘Against these matters, it must be said that both the South Melbourne Agreement claim and the All States Agreement claim formed a very minor part of Bodycorp’s case. There was also evidence sought to be adduced from the defendants’ witnesses which might have assisted Bodycorp’s case if the evidence had been forthcoming as advanced by Bodycorp. In my view, in the broader context of the case advanced by Bodycorp, the fact that these somewhat fragile claims were pursued to the conclusion of the trial does not, of itself, amount to the sort of exceptional circumstances that would be required to justify the court departing from the usual costs order.’

DID YOU SIGN BLANK PAGES FOR LAF?

DEALING WITH THE NEW FOS IN PILOT MODE - whether your case is open or closed... you need to read this Inbox x members@bfcsa.com.au 23:45 (16 hours ago) to Hi Members – whether your FOS cases are open or closed – you need to read this………………………………….and start writing!!!! If the question is asked “did you sign blank form” IT’S A TRICK question. The Bank Lawyers want you to say yes due to a called called Longobardi Think back. Very few would ever sign a blank form. Most only saw 3 pages not an 11 page document called a LAF………………… You signed to say you read and understood everything yet only saw 3 pages and all other pages were added after you signed and without your knowledge….this was what BDM’s taught the Brokers It occurred with all banks/lenders in all states – this was regular standard practice…………………that is the scam. I cannot tell you to lie…..nor am I suggesting that………………… I want you to think long and hard on that question…………………………….The Brokers were taught to fill in first of three pages – perhaps four – front page with name and address etc – then present 2-3 other pages whereby signature required. In a room of 66 people I asked for show of hands to people I was meeting for first time. All raised their hand to say YES 3 pages remembered. No one raised hand to say I remember 11 pages………………………… TV Camera’s were rolling………………………………….. Brokers have admitted to me YES we were told to ask signatures on only the pages required – go back to the office and work out the income on the computer – no those pages needed no signature. NO client never sees those pages. Its a disgraceful crime scene. Longobardi is the only case where this question was asked by bank lawyers. She said “I must have signed a blank form….YES” Judge then said your fault…bank won the case. She had a dumb lawyer. FOS and the bank lawyers are trying on the same things. If you are “not the sort of person to sign blank forms” then tell them……………………… Remember the plot was for YOU NEVER TO SEE THE LAF – EVER !!…………………………. Next trick from FOS “bank expert” seconded from bank….. FOS now telling Case Managers to put nothing in writing and ring and ask questions MY ADVICE TO PROTECT YOUR INTERESTS Dear Case Manager: "we do not give you (FOS) permission to phone me.............................everything must be in writing Any questions I must be given time to think and read and answer correctly. I am not on trial here, I am the complainant. You are welcome to email me anytime as the main line of communication. If there is a mediation, I want to have someone I choose beside me that’s on my side." In some cases (not a complex mess) and for small fee, I am prepared to go to the mediation conference (via phone hook up) with you. We are also behind the scenes trying to negate the problem THE ARGUMENT OF AGENCY read SCHMIDT (Vic) www.austlii.edu.au FOS are not taking the lead of the court and are cherry picking cases. We are also disturbed that without any warning FOS created a PILOT PROGRAM – discovered by Gladys – our intrepid researcher. You are all being guinea pigs in a fast track system due to the 15,000 mortgage home loan complaints per year FOS is now swamped with. Please please read my blogs online – most of the new info is there. www.bfcsa.com.au FOS have cut out recommendations and panel of review. Again, DO NOT speak to Case Manager on the phone as then the trick questions that are loaded can be answered and you have no idea what is being written down on your file!!!! THIS IS A CRIME SCENE so we expected that the more cases coming forward the more FOS would have problems. They have also suffered high turnover of case managers who cannot stomach what is going on, I would suggest. WE WANT A ROYAL COMMISSION INTO BANKS so write to your State and Federal MP and tell them why there has to be a FEDERAL ROYAL COMMISSION INTO BANKS and why State MP’s must lobby for funding from their Attorneys- General to have cases re-opened and properly funded. IN THE PUBLIC INTEREST! And why there has to be A DEDICATED FEDERAL CONSUMER PROTECTION BUREAU – that ASIC cannot be permitted to deal with consumer complaints……..because since 2002 ASIC and ABOS (FOS) knew of maladministration in lending by major banks was a problem and have engaged in active cover-up processing. The latest PILOT program is a covert disgrace. Please write to Nick Xenophon……………………………..INDEPENDANT The Banks are the agent of the banks 1. PAID BY THE BANKS 2. SCHMIDT CASE – Judge agreed that Broker was agent of Bank 3. VANDENBERGH (WA ditto) 4. FOS not taking the lead of the courts. They are cherry picking outcomes that favour the Banks. BFCSA has files of proof. 5. FOS OPERATING A COVERT PILOT PROGRAM to give take it or leave it decision with victim having no right of reply……………………………………. 6. Under PILOT PROGRAM Ombudsman’s Determination are saying YES Maladministration found but then $5, 000 reduction offered, take it or leave it – 30 days yes/no and FOS will then close your file. 7. Ombudsman has been captured by the Banks. 8. WHY is Broker the agent? Bank owes duty of Identification under ANTI MONEY LAUNDERING and COUNTER TERRORISM FINANCING ACT 2001 a. Bank passed on that statutory obligation to Broker – therefore Broker is the paid agent of the Bank b. Bank also insisted that an IDENTIFICATION VERIFICATION STAT DEC be signed by Broker to again satisfy the Banks Statutory Obligations. We are now seeking funding for a fresh case under public interest, in each state of Australia, funded by State A-G’s and we will be demanding publicly that FOS re-open all Determinations carried out with no right of reply in the PILOT PROGRAM The battle has just begun and the Pilot Program shows how desperate FOS and the Banks are getting to dream up that one. No right of Reply? An Inquisition with a guaranteed get out of jail free card for Bankers? YOU HAVE THE POWER – you are a collective group that do not know each other – now I hope you all understand why I protected that power. Yet we have amassed the greatest collection of evidence……..and we will be using it!!! Bank on It! Kind regards, Denise L Brailey President of BFCSA (Inc) Banking and Finance Consumers Support Association (Inc) www.bfcsa.com.au denise@bfcsa.com.au Mob: 0401 642 344 Ph: 08 9631 1488

APPLICATION TO SET ASIDE COSTS AGREEMENTS FOR DISCLOSURE DEFAULTS FAILS: AUSTRALIAN PROFESSIONAL LIABILITY BLOG

The Australian Professional Liability Blog Application to set aside costs agreements for disclosure defaults fails Posted: 03 Mar 2014 04:16 AM PST A decision of the Supreme Court of Queensland has made clear what ought to be more obvious than it appears to be, namely that costs disclosure defaults will not result in the setting aside of a costs agreement in the absence of evidence that the non-disclosures had some effect on the client’s decision to enter into the costs agreement on the terms in fact adopted between the solicitor and client. Section 3.4.17(3) of the Legal Profession Act 2004 says: ‘If a law practice does not disclose to a client … anything required by this Division to be disclosed and the client … has entered into a costs agreement with the law practice, the client … may also apply under section 3.4.32 for the costs agreement to be set aside.’ Section 3.4.32 says a client can apply to set aside a costs agreement if it is not fair and reasonable. Section 3.4.17 also says that where there has been a costs disclosure default, the solicitor may not sue for fees until there has been a taxation as between solicitor and own client, and that those fees should be reduced proportionately to the seriousness of the default. Too many applications to set aside costs agreements are made or threatened on the basis of costs disclosure defaults which were irrelevant to the client’s decision to enter into the agreement. To the unthinking and the dim, s. 3.4.17(3) is a bit of a seductress, a flashing light which beckons towards error. But now the Supreme Court of Queensland has laid out the law in a decision which is concise because of the short shrift given to such an argument: Barclay v McMahon Clarke (A Firm) [2014] QSC 20. Two men, one of whom was a solicitor, instructed a Queensland firm in relation to two multi-million dollar property developments. Companies controlled by both of them and other companies controlled by only one of them, all involved in the developments, were also clients. It seems that the clients were severally rather than jointly or jointly and severally liable for the fees in different retainers some of which related exclusively to one company. The firm decided to enter into one costs agreement which would encompass all work relating to the developments for all the companies. So far so good. But the firm also decided to give one costs disclosure for all matters. The firm set out the hourly rates pursuant to which it proposed to charge and then estimated that its fees for acting in the very many different matters was $10,000 to $40,000 per month. No estimate of how many months’ work would be required was given. Nor was any estimate given in respect of any one matter or even any one client. The scope of the costs agreement was broad and intended to encompass all work associated with the developments for any of the entities including work which might arise in the future out of circumstances not yet in contemplation. Neither the group as a whole nor any individual clients received an estimate of its or their total legal costs. These were objectively serious costs disclosure defaults. But the applicants failed to establish that they would have done anything differently had they obtained proper disclosures, and that was fatal: ‘Mr Barclay and Mr Creswick were men of commercial experience, and they were accustomed to dealing with McMahon Clarke. The firm had acted for them and entities of theirs involved in the two property developments since 2009. Work had been done for them on more than 25 files before the August 2013 costs agreement was signed. At least one prior costs agreement had been concluded. Fees for a variety of work, including litigation, had been rendered; and the bills had mostly been paid. Moreover, Mr Creswick was the person who gave McMahon Clarke instructions about the projects; and throughout the various retainers, he held a practicing certificate as an Australian legal practitioner. McMahon Clarke’s non-disclosure involved a partial failure to comply with the statutory prescriptions. But the omitted information was, it seems, of no significance to Mr Barclay or Mr Creswick when, for themselves and their corporations, they decided to conclude the costs agreement. There is nothing to suggest that the agreement would not have been concluded on the same terms if the omitted disclosures had been made, and there is no reason to suppose that the omitted disclosures mattered to any of the applicants. No evidence was adduced from Mr Barclay, Mr Creswick or anyone else to suggest that the disclosure agreement did not provide the applicants with all the information they desired to make informed decisions whether to enter into a costs agreement and, if so, on what terms. Nor was it suggested, in evidence or in argument, that any of the applicants could have been misled by the disclosure notice, either because of what it disclosed or else left unexpressed. The disclosure notice gave the applicants a fair understanding of the effect of the costs agreement. They must have understood its operation. And they made a free choice to enter into it with information sufficient for their needs.[6] [6] cf McNamara Business at [28], [52]. Accordingly, the omission to comply fully with the statutory prescription did not render the costs agreement unfair.’ The unspoken implication of all of this is that it was appropriate to pierce the corporate veil, and that this was two men more or less in partnership with various corporate manifestations which could fairly be looked through. A different result might well arise in circumstances in which the different clients were not quite so cosy to one another.

RULES RELATING TO UNJUSTIFIED ALLEGATIONS OF FRAUD AUSTRALIA WIDE AND BASED ON RESEARCH BY ZOE DEALEHR- AUSTRALIAN PROFESSIONAL LIABILITY BLOG

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 12:06 (20 hours ago) to me The Australian Professional Liability Blog Rules relating to unjustified allegations of fraud, etc. Posted: 01 Mar 2014 06:52 PM PST This post, based on research by Zoe Dealehr, collects together the various Bar conduct rules around Australia relating to the requirement of a proper factual foundation for making allegations of criminality, fraud and other serious misconduct as well as for allegations in litigation more generally. First of all, the relevant Victorian rules are set out. They are more detailed than the other states’ and territories’ rules. Apart from Tasmania’s, the rest of Australia’s conduct rules for barristers are almost uniform and are similar to, but different from Victoria’s. Tasmania appears to have no conduct rules on the subject, but it is said that it is soon to adopt the national rules which are the foundation for the non-Victorian rules. Victorian barristers’ rules The Victorian rules are more detailed than the other conduct rules for lawyers around Australia. Victorian barristers’ rules – interpretation “case” means the litigation or proceedings in which the barrister in question is briefed to appear, or the dispute in which the barrister is advising, as the case may be. “client” means the client of the practitioner in question … and includes those officers, servants or agents of a client, which is not a natural person, who are responsible for or involved in giving instructions on behalf of the client. “court” means any body described as such and all other judicial tribunals, all statutory tribunals and disciplinary tribunals and all statutory or Parliamentary investigations and inquiries, Royal Commissions, arbitrations and mediations. “criminal proceedings” includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or de-registration (or the equivalent). “forensic judgments” do not include decisions as to the commencement of proceedings, the joinder of parties, admissions or concessions of fact, amendments of pleadings or undertakings to a court, or in criminal proceedings as to a plea, but do include advice given to assist the client or the instructing solicitor to make such decisions. “instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be. 9 (a) These Rules are not, and should not be read as if they were, a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, in the Legal Practice Act and in the general law (including the law relating to contempt of court). 9(c) General provisions of these Rules should not be read or applied in a limited way by reason of any particular or illustrative provisions. Victorian barristers’ rules — the rules Duty to Court, Conduct in Court 31 A barrister must, when exercising the forensic judgments called for throughout a case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister. 32 When drawing or settling a pleading or affidavit, a barrister shall not include an allegation which is not supported by facts contained in instructions, or by facts which the barrister otherwise reasonably believes to exist. 34 A barrister must not draw or settle any court document alleging criminality, fraud or other serious misconduct unless the barrister believes on reasonable grounds that: (a) factual material already available to the barrister provides a proper basis for the allegation if it is made in a pleading; (b) the evidence in which the allegation is made, if it is made in evidence, will be admissible in the case when it is filed; and (c) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client if it is not made out. 35 A barrister must not open as a fact any allegation which the barrister does not then believe on reasonable grounds will be capable of support by the evidence which will be available to be presented to support the client’s case. 38 A barrister must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless: (a) the barrister believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion. 39 A barrister may regard the opinion of the instructing solicitor that material which appears to support a suggestion within Rule 38 is itself credible as a reasonable ground for holding the belief required by Rule 38(a). 40 A barrister must make reasonable inquiries to the extent which is practicable before the barrister can have reasonable grounds for holding the belief required by Rule 38(a), unless the barrister has received and accepted an opinion from the instructing solicitor within Rule 39. 42 A barrister must not suggest criminality, fraud or other serious misconduct against any person in the course of the barrister’s address on the evidence unless: (a) the barrister believes on reasonable grounds that the evidence in the case provides a proper basis for the suggestion; and (b) there are reasonable grounds for believing that such matters are both well founded and also relevant. Western Australian barristers’ rules Interpretation 10. These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the Legal Profession Act 2008 and in the general law (including the law relating to contempt of court). 7. General provisions of these Rules should not be read or applied in a limited way by reason of any particular or illustrative provisions. “allege” includes conduct constituted by settling or opening on pleadings, affidavits or witness statements, and reading or tendering affidavits or witness statements filed or prepared for the client (whether or not they were drawn or settled by the barrister). “court” means any body described as such and all other judicial tribunals, and all statutory tribunals and all investigations and inquiries (established by statute or by a Parliament), Royal Commissions [the Criminal Justice Commission/ICAC or equivalent], arbitrations and mediations. “instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney. Rules 59. A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court: (a) is reasonably justified by the material then available to the barrister; 60. A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister; 63. A barrister must not allege any matter of fact in: (a) any court document settled by the barrister; (b) any submission during any hearing; (c) the course of an opening address; or (d) the course of a closing address or submission on the evidence; unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so. 64. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it; and (b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out. 65. A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence). The following rules are to similar effect: Queensland barristers’ rules New South Wales barristers’ rules So too are South Australia’s, the ACT’s and the Northern Territory, except in a couple of respects: South Australia barristers’ rules The definition of “instructing solicitor” is: the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney. Australian Capital Territory barristers’ rules The ACT’s rules are the same as Western Australia’s except that they include a version of the Victorian rule 40: A barrister must make reasonable enquiries to the extent which is practicable before the barrister can have reasonable grounds for holding the belief required by Rule 38(a), unless the barrister has received and accepted an opinion from the instructing solicitor within Rule 39. And the definition of ‘instructing solicitor’ is slightly different: “instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate. Northern Territory barristers’ rules The Northern Territory’s rules too are similar to Western Australia’s except that they have the following additional rule 39: A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 36 and 37 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence). And ‘instructing solicitor’ is defined to mean: the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney.