The Lawyer’s duty – without fear or favour

It is important that litigants and their legal advisors remember that the court processes must not be misused, be unjustifiably oppressive, be used for illegitimate or collateral purposes or for bringing the administration of justice into disrepute.

Litigation may be increasingly expensive and bruising and, given what is at stake, it is both understandable and appropriate that parties will take all legitimate steps in order to advance their causes.  The temptation to exceed what is permissible, either by the use of litigation, or in the course of litigation, must be guarded against.

It is a reminder why the legal advisor, whether internal or external must be firm, ethical and impartial.

It is important to bear in mind, that there are limits on what is permissible.  This was something recently considered by the Court of Appeal in Western Australia in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 (Sheraz case).  The case also served as a reminder that counsel appearing must be appropriately independent and must not have a personal interest in the case, to avoid any perception that counsel would not bring to the court the independence expected of counsel.  Indeed the Professional Conduct Rules in Western Australia require this. 

An important part of the role of counsel, or any legal advisor, is to bring that necessary dispassionate mind to bear to ensure that litigants and potential litigants are not misusing the court process. 

In the Sheraz case, litigation was concluded to trial and appeal in the Federal Court. 

Subsequently proceedings touching on the subject matter of the Federal Court proceedings were commenced in the Supreme Court by Vegas Enterprises.  A master found that those proceedings could not be allowed to proceed, given the close overlap between them and the previous Federal Court proceedings. 

Vegas Enterprises appealed against that decision.  The appeal was dismissed.  The proceedings were held to have been oppressive.

The case is a salient reminder that:

  • All relevant issues should be brought in a single piece of litigation.  There should not be an attempt to hold back issues in the hope that they can be re-litigated elsewhere and separately if the original proceedings are unsuccessful.
  • The advisors to litigants and potential litigants must be alive to provide clear and strong advice to their clients about their obligation to avoid engaging in the abuses of process. 
  • The advisors (internal and external) must be independent and impartial in providing advice.