FEDERAL COURT OF AUSTRALIA

Barghouthi v ING Custodians Pty Limited [2003] FCA 636

RAMZI BARGHOUTHI v ING CUSTODIANS PTY LIMITED AND ORS

N 505 of 2002

ALLSOP J

23 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1. until further order any procedural step, other than the faxing of lists of authorities, be taken only by the filing of a notice of motion;

2. the hearing date of 30 June 2003 be vacated;

3. the applicant file and serve any further submissions or draft amended notice of appeal on or before 4pm, Wednesday 25 June 2003;

4. on or before midday, Friday 27 June the respondents file any motion they wish to rely upon;

5. the matter be stood over to 2 July 2003;

6. the question of costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I do not propose to distribute this judgment on to the internet, but it is a judgment of the court.

2                     On the afternoon of Friday, 20 June 2003 the applicant, Mr Barghouthi, rang my chambers and spoke to my associate.  He was due that day to file his written submissions in reply pursuant to orders made on 14 May 2003.  He said that he had been sick and needed five more days, that is, until Wednesday, 25 June 2003, to finalise those submissions.

3                     The proceedings are fixed for the second and hopefully last day of hearing on Monday, 30 June 2003.  The respondents are not obliged to file any further submissions or documents prior to the hearing.  They need to be in a position however to understand Mr Barghouthi's submissions and also to be in a position to add anything in reply should their submissions in chief be inadequate to cover all points. 

4                     Running a case managed docket system with a litigant in person is not easy.  No doubt it is not easy for the legal representatives of the other party.  Sometimes litigants in person do things that one would not expect from a well trained experienced practitioner.  Ringing judge's chambers and asking for some procedural indulgence without speaking to the other side is one such example.  Due allowance must be made, and commonsense however should prevail. 

5                     In setting the timetable leading up to the 30 June 2003 hearing I deliberately left a gap of nine working days between the end of 20 June and the hearing on 30 June 2003.  This was, I thought, more than adequate for one of the most skilled and experienced firms of solicitors in Sydney aided by an experienced member of the junior bar to come to grips with Mr Barghouthi's submissions.  Rather than cause costs to be incurred in having the matter listed to resolve what I thought was a request, perhaps irritating, but plainly not one, I thought at the time, likely to cause prejudice (the respondents would still have two working days and a weekend to read, understand and prepare any additional response to Mr Barghouthi's submissions) I decided to accede to the request, notify the respondents’ solicitors and ascertain whether there was any difficulty. 

6                     My associate rang the firm of solicitors on the record.  She spoke to a junior solicitor handling the matter who, if I may say so, very sensibly and reasonably said that she did not think it would be a difficulty but she would need to speak to her supervising solicitor.  Some time later in the afternoon that supervising solicitor rang back.  She spoke to my associate initially courteously and civilly and indicated that it would not be a problem and also indicated that the respondents were having difficulty understanding Mr Barghouthi's amended notice of appeal.

7                     Later in the afternoon, the supervising solicitor rang back and said she had thought about it some more and was concerned that the time remaining (that is, Thursday, Friday, Saturday and Sunday) would not give enough time to consider the submissions in reply, that she hadn't spoken with counsel but had counsel's available dates later in the week and requested that the matter be vacated from 30 June and set down later in the week.  My associate was requested to get my dates out.  My associate then indicated that she thought that if the date was to be vacated or it was desired to vacate the date then something would have to be put in writing.  This was in the context of the respondent's solicitor not apparently having spoken to counsel and not obviously having Mr Barghouthi's submissions in their possession.

8                     At this point the solicitor apparently spoke to my associate in a manner to which my associate took offence and which she thought to be both angry and rude.  The following was apparently said:

"So Mr Barghouthi can get what he asks for by phoning, but I have to put it in writing". 

9                     Those may not have been the precise words but they are the substance of that which I have been informed. 

10                  Upon learning of this conversation, I had the matter put in the list at 9.30 this morning to allow the respondents, if they so instructed their solicitors, to have me discharge the order I made extending time to Mr Barghouthi under O 35 r 7(2)(a) of the Federal Court Rules being an order made in the absence of a party, or to vacate the date, or to make such other application as they sought fit.  I also put the matter in the list to allow the solicitor in question to explain her behavior to me, through my associate, and to take such steps as she thought she should in all the circumstances.

11                  I have heard the parties today, and while I have grave reservations as to its necessity, I am prepared, given the lack of prejudice to Mr Barghouthi, to move the hearing date to 2 July.  This movement may prejudice other litigants, who are to be given a date in the next two days; nevertheless, I will do so.

12                  The solicitor in question, whom I do not propose to identify by name, has apologised to both myself, that is the court, and my associate.  I accept that apology.  Nevertheless, I think it appropriate to say something further by way of clarification. 

13                  Ms Heath, counsel for the respondents indicated that on her instructions, there must have been a misconstruction or misunderstanding. 

14                  What was said by the solicitor may not have been intentional but can be described in a number of ways.  First, it was apparently simply said rudely.  Secondly, it also contained, in substance, an allegation made to a member of my staff that I was unfairly favoring Mr Barghouthi.  This was in itself an allegation of bias of some kind. 

15                  To have my associate spoken to like this by an experienced solicitor is simply intolerable.  I have said in other contexts, also dealing with the behavior of practitioners, that, of its own nature, litigation is a costly and stressful, but necessary, evil.  No doubt the growing pressure of litigants in person, makes litigation practice more burdensome and more stressful.  It does so for the bench as well. 

16                  Those circumstances, however, make it all the more necessary that practitioners display a level and degree of courtesy and civility in their conduct of litigation.  Courtesy and civility are not bourgeois affectations.  They are not the mark of the effete or inept litigator.  They are part of a practitioner’s overriding duty to the court, indeed to the standards of the profession and to the public. 

17                  It has often been recognised that fearlessness of representation of one's client and courtesy should go hand in hand: see Ex parte Bellanto; Re Prior [1963] SR NSW 190 at 204, where a Full Court of the Supreme Court of New South Wales, in discussing the conduct and duties of counsel, set the matter out eloquently.  In this day and age of the fused profession, the same principles apply to solicitors. 

18                  Courtesy and civility are part of the fabric of the duty to the Court.  Kirby ACJ said the following in Garrard v Email Furniture (1993) 32 NSWLR 662 at 667:

I pause before passing on to the legal issues before the Court to reflect upon the sorry state of professional relations which are evidenced in the above facts.  In New Zealand a development within the legal profession has been noted which is unfortunately also appearing in this State.  It is equally to be regretted.  In “Enlivening the Law”[1992] NZLJ 288 289 Williams J of the High Court of New Zealand observed: 

"…Even allowing for the fact that we are going through tough times which are unusually difficult and increasingly tough, the aggressive and discourteous tone of some of these letters [between solicitors and even between counsel] would have been unthinkable 25 years ago or even 10 years ago and I have to say that the larger firms often provide the worst examples”. 

Discourtesy is not limited to the tone of the correspondence or the vigour of its language.  Those members of the legal profession who seek to win a momentary advantage for their clients without observing the usual and proper courtesies invite correction by the court and disapprobation of their colleagues."

19                  His Honour was talking of courtesy between professionals in a different forensic context, that of snapping a judgment.  Now, it would appear that discourtesy is to be exhibited to judges, through their associates.

20                  Litigation with a litigant in person is not easy.  Mr Barghouthi has complained in the past about his treatment by the solicitors for the respondents.  Those complaints may have been groundless. 

21                  Litigants in person see the courts as populated by trained professionals.  They feel outsiders because they are not part of the group of people, the profession, in whom the court habitually reposes trust and confidence.  They suffer the twin stresses of being the client and the advocate.  Anyone who has been either can only guess at the stress of being both. 

22                  Sometimes cases brought by litigants in person are groundless.  Sometimes they are not.  The litigant in person is entitled to a fair hearing in a civil environment, no more, no less; but it is essential in dealing with procedural matters not to let irrelevant minutiae act as a focus for further unnecessary complaint and the potential growth of obsession.  This is so even if, because of their lack of training, litigants in person display what would between professionals be gross discourtesy, such as calling the judge in chambers without notice. 

23                  A competent solicitor should understand all this. 

24                  The litigant in person is entitled to treatment by a courteous and civil profession.  That is part of the practitioner's duty to the Court and the public.  If I, through my associate, am to be spoken to in this fashion, I must assume that a similar level of discourtesy may have been shown to Mr Bargouthi in the past. 

25                  If so, it will stop. 

26                  What has passed does call for some supplementary procedural orders.  They will be orders that apply to both parties, because I cannot have one regime for one and one regime for another.  I propose to suspend one aspect of case management.  Henceforth in this matter, until further order, all communications with the Court will be through notices of motion filed in the Registry. 

27                  For the docket system to work, courtesy and civility are essential.  If the Court cannot place trust in practitioners to behave appropriately, and if a judge is put in the intolerable position of dealing with a practitioner because his or her personal staff are to be spoken to in a particular manner, and if a judge has to ascertain the truth as to what was said between his associate and a member of the profession, the case management system simply cannot work. 

28                  I cannot be put in a position of debate about what was, or was not, said by, or to, my associate.  For that reason sometimes the operation of the docket system is suspended when a litigant in person is before the Court.  That is because sometimes a litigant in person lacks professional propriety in the way he or she conducts him or herself.  Regrettably here, I propose to amend the case management of this matter because of the conduct of a member of the profession. 

29                  I order that any procedural step, other than the faxing of lists of authorities, until further order, be taken only by the filing of a notice of motion and the seeking of any necessary abridgment of time is to be done in the same way.  I vacate the hearing date for 30 June.  I stand the matter over to 2 July.  On 2 July I will hear any motion that is on file.  I dispense with the need for Mr Barghouthi to file a notice of motion.  It is clear enough what he wishes to do.  He wishes to move on his amended notice of appeal. 

30                  I direct that the respondents file any motion they wish to rely upon next Wednesday on or before midday on Friday 27 June.

31                  I reserve the question of costs today until after the hearing of this matter. 

Associate:

Dated:              4 July 2003