The duty of formality: Maintaining etiquette with the court

The recent judgment of Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 has provided a timely reminder of a practitioner's duty of formality before the court.

The duty of formality encapsulates principles of etiquette and requires practitioners to be polite and courteous in all their dealings with the court. This extends to dressing professionally, being punctual and prepared, and always maintaining civility.

But what does this mean in practice?

Helpfully, the Federal Circuit and Family Court of Australia has provided guidance insofar as it relates to corresponding by email with the court.

Background

These proceedings were commenced on 4 August 2023 in the Federal Circuit and Family Court's bankruptcy jurisdiction.

On 12 September 2023, the Court entered certain case management orders.

Due to a slippage in the timetable, the parties did not comply with the orders entered on 12 September 2023.

On 17 October 2023, five days after the time for compliance had passed, the Chambers of Her Honour, Justice Given, received an email from a law clerk in the employ of the solicitors for the second respondent (in the proceedings). That email read (with original emphasis):

Dear Associate

We refer to the abovementioned proceedings listed for 2 November 2023 before Judge Given.

We attach signed short minutes of order shared with the Court concurrently.

The Applicant and First Respondent’s solicitors have consented to the Orders and have been copied into this email.

Please have the Directions hearing relisted in accordance with the Orders.

Kind regards

Upon receipt of the email, Her Honour listed the matter for directions hearing on 19 October 2023 and required the legal practitioners for the parties to appear in order to address:

• the failure of the respondents to comply with the orders made on 12 September 2023 (the rectification of which was being sought by way of new consent orders); and
• the basis or authority upon which the Court could be directed by a law clerk to make orders and relist proceedings.

Reasons for judgment

Her Honour delivered reasons for judgment to "address the apparent deterioration in the standard of conduct before the Court" arising from the aforementioned email correspondence that was sent to the Court.

In essence, the judgment reminds us of the following:

• A solicitor must not deal with the court with informal personal familiarity (which may give the appearance of special favour). This is captured in Rule 18 of the Australian Solicitors' Conduct Rules.
• Legal practitioners and non-legal personnel cannot direct the court to make orders agreed by the parties or relist proceedings. Such matters are at the discretion of the court.
• As to the court exercising its discretion, practitioners should be aware that consent orders remain proposed unless, and until, the court enters them.
• Accordingly, no correspondence to the court should simply inform the court that a change in orders has been agreed.
• If there has been a breach of orders, it is essential that the parties to the proceedings provide an explanation to the court as to the breach. That explanation should be provided prior to the breach, noting that parties should exercise the "liberty to apply" order.
• Using "kind regards" to sign off email correspondence to the court is not appropriate, and "falls foul of the obligation to avoid informality".
• A communication to the court to "make substantive representations and/or seek orders" should only be sent by an admitted legal practitioner, preferably by the solicitor on record or the solicitor with day-to-day conduct of the file. Non-legal staff who are not permitted to appear before the court on behalf of a party should refrain from sending emails regarding substantive matters or requests.

Moving forward

This is an important reminder for legal practitioners to:

• acknowledge the court's discretion and politely request the court consider any proposed orders submitted, and offer to appear if the court was minded to re-list the matter;
• always remain formal and polite with the court regardless of the method of communication (whether that is an in-person appearance, by written communication such as letter or email, and even submissions and requests made via online court systems such as the NSW Online Registry); and
• by extension, in this post-COVID environment where the use of audio visual link (AVL) has become more commonplace, ensure those who utilise the privilege of AVL switch off their cameras and microphones until their matter is called. Importantly, this extends to not putting a call on hold if a practitioner has dialled in by phone. That hold music is neither pleasing nor expedient in the administration of justice!

Note: The Federal Court of Australia and the Federal Circuit and Family Court of Australia have helpful pages on their respective websites to assist legal practitioners with the etiquette required for attending court.