Bankruptcy judge lashes law firm for informality

Insolvency practitioner and AIIP president Shabnam Amirbeaggi would have been relieved last week that it wasn’t her lawyers who recently attracted the ire of Federal Circuit judge Sophie Given.

As trustee in bankruptcy of one Maureen Billiau, Amirbeaggi has been frustrated in her efforts to realise estate property and so she went to court in August this year to obtain the necessary orders.

“That same circumstance has deprived a generation of young lawyers from exposure to proper Court etiquette. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.” Judge Sophie Given.

The matter came before Judge Given in September and at that time her honour ordered the bankrupt and her ex-husband and second respondent Michael Watson to file and serve their Notice of Opposition and Affidavits by 12 October.

As the judge recounts in Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949, while the respondents failed to comply with those orders, worse was to come.

“On 17 October 2023, being five days after the time for compliance with order 1 of the September orders had passed, my Chambers received email correspondence from a “Law Clerk” in the employ of the solicitors for the second respondent, in the following terms (original emphasis):

“Dear Associate

We refer to the above mentioned 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”

Well her honour hit the roof as users of the vernacular might say, though ceiling’s more likely.

Incensed at the perceived informality, nay “arrogance” displayed by such a cavalierly worded missive, Judge Given gave it them, devoting 14 of her judgment’s 24 paragraphs to explaining why such correspondence was inappropriate and citing the Solicitors’ Rules to illustrate why all parties to a proceeding need to assess communications that concern them if those communications are to be sent to a judge’s chambers.

“Having regard to r 22.5.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Rules), practitioners should be cautious in reviewing and consenting to correspondence which will be sent to the Court by other parties on their behalf,” she said.

This was a veiled swipe at O’Neill Partners which is acting for Amirbeaggi and the bankrupt’s advisors, MSP Law. The hapless paralegal who sent the email however works at Romans & Romans Lawyers and Judge Given zeroed in on the real culprit, they being the solicitor on record for the matter, who as it turned out left a colleague from Romans & Romans to appear on October 19, the date the judge had set down to address both the respondents’ failure to comply with her September orders and the “basis, and by which authority, the Court could be directed by a law clerk to make orders and relist proceedings”.

“There is arguably nothing so informal, or possibly arrogant, as to approach a Court with orders which have been agreed amongst the parties and simply presume, or in the instant case direct, that they will be made (or to use the parlance of days’ past “rubber-stamped”,” she said.

“Conduct or submissions which are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the Court.

“The concluding use of “Kind regards” or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.”

Her honour then proceed to lament the trend, which she speculated was a result of the use of email by legal practitioners communicating with the court electronically during the COVID lockdown period.

“The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since the COVID-19 pandemic restrictions which forced a number of Courts to conduct hearings using online technologies,” she opined.

“That same circumstance has deprived a generation of young lawyers from exposure to proper Court etiquette. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.”

So lawyers, relax. Informality is the grievous sin. Immorality is yet to be censured.